When I read this opinion the first time I had an emotional reaction against the conclusion it reaches. But I've been doing this long enough not to trust the emotions that arise during the first reading of a decision and went back to reread it. My reaction that time was: What the heck is going on in the Norfolk courts?
There are three issues in the appeal. First is the refusal of the trial judge to accept a plea agreement for 20 years with 16 suspended. Second is the refusal of the judge to recuse himself from a case he sought to be appointed to. Third is sufficiency of the evidence. I'm not going to address the third issue because it's fairly typical. As well, I only read the majority opinion before posting this so I shan't be commenting on the concurrence or the dissent; I do this whenever I read opinions I plan to comment on so that the comments are my own.
Let me address a few things which are not exactly the direct point of the opinion but are very important. To begin with, there's something screwy about the procedure for appointing judges to a case in Norfolk. I don't know what it is exactly but on the first court date the judge who was supposed to handle the case was not present and the case was not continued to another date for that judge - it was handed over to a different judge. That's not the usual way I've seen things done but it's not terribly unusual either; there might be a number of reasons - such as crowded dockets or speedy trial requirements - which mandated this procedure. When the attorney asks for a jury trial the case is carried to another date, as it normally would be because of the need to assemble jurors and the fact that an appropriate amount of time has probably not been allotted for a jury trial. Here's where the red flag pops up. The judge accuses the defense attorney of "judge shopping"; by this I infer (though it is never stated) that the judge knew a different judge would be set for the next trial date. There was then a different judge who heard a suppression motion. After this, there was yet another judge at the next court date, who also commented on "judge shopping" when the defendant withdrew his request for a jury. In the four days between this hearing and the trial, the two judges who commented on "judge shopping" went to the chief judge and asked that the first judge be put back in charge of the case. The chief judge then placed the first judge back in charge of the case. I don't know what's going on here and why a defendant doesn't stay with the same judge throughout his entire trial but the fact that Norfolk doesn't assign a defendant to one judge, and one judge only, seems to be the major source of the problem here.
Next, it is clear that the defense attorney did not want his client to have the first judge deciding if his client was innocent or guilty and setting the penalty. The defense attorney is brutally honest about this when he tells the judge that the decision to seek a jury trial was taken when he found out that this judge had been substituted for the original judge: a defendant "cannot intelligently decide [whether to request a trial by judge or jury without] know[ing] who the judge is." At this point the judge punishes the defense attorney for "judge shopping" by removing him from the court appointment list. I don't know if the attorney was "judge shopping." I'd feel a lot more comfortable in asserting that he wasn't if there was a record of him trying to get a jury once this judge had been placed back in charge of this case; the appellate decision doesn't state whether he did or not.
In any event, the defense attorney's given reason for asking for the jury is entirely valid although it's not a reason that will endear an attorney to whichever judge he tells that to (basically you're telling the judge he cannot be trusted). In advising my clients as to whether they should take a jury I talk to them about whichever judge they are going before. When you stand in front Judge Smith, Judge Jones, and Judge Green every week you get to know them pretty well. If you believe that Judge Smith is really good at making the correct legal decisions but has never resolved a fact in a defendant's favor; that Judge Jones puts a lot of thought into the law and facts of every case but punishes excessively (even more than a jury usually does) whenever he convicts someone of what your client is charged with; and Judge Green routinely convicts with evidence that you don't think even rises to a preponderance but then almost always departs significantly downward from the guidelines, it would be malpractice not to take these factors into account when recommending to your client whether or not to take a jury trial. I don't know the trial judge in this case. The only objective facts I know are that the prosecutor thought his case was weak enough that he was willing to settle for 4 years active incarceration and the trial judge, apparently in a significant departure from the guidelines, sentenced the defendant to 750% above what the plea agreement would have been. I would have to have a serious talk with my client about a jury trial if I had a client before a judge who had done that sort of thing more than once.
As well, outside of the law addressed by the case there are a number of ethical issues raised here. Did the judge violate the cannons when he sought a case and refused to recuse himself? Did the judge act unethically when he removed the attorney from the court appointed list? Did the lawyer act unethically when he first asked for a jury and then withdrew the request? I'm not an ethics expert so the only one of these questions I'll address is the one the Court of Appeals spoke to. The appellate court didn't quite state that the judge violated the cannons when he didn't recuse himself; it merely recited the standard and stated that the violation of this standard didn't mean the law was violated. This is not a ringing endorsement of the trial judge's actions.
Finally, I'm not sure why the judges didn't handle this situation the way the judges I appear in front of would handle it. I know that if I ask for a jury trial my client, unless he decides to plead guilty, will have a jury trail and a jury sentencing. Because the jury trial is allegedly the default setting in a Virginia criminal case the jury must be waived by the defendant, the prosecutor, and the judge. Once I ask for a jury trial the judges hereabouts will just exercise their option to go forward with a jury trial if I try to waive at a later date. Because of the fact that a jury sentences this would generally be too devastating to risk just to get a different judge.
All of these side issues would have been avoided - and quite possibly the primary issues as well - if Norfolk assigned a trial to one judge from beginning to end (although I must admit I like the idea of a different judge hearing the suppression motion) and/or a choice for a jury trial would stick no matter which judge you ended up before.
Defendant came to court expecting to have a bench trial in front of a particular judge. However, Defendant's case was put in front of another judge. At this point the defendant asserts his right to a jury trial and the case is put off to another date. Later, when the defendant appears in front of a different judge he withdraws his motion for a jury trial and the case is set for trial. At this point the first judge asks the chief judge to return the case to his courtroom for trial because he believes the request for a jury was made for the sole reason of removing the trial from his courtroom.
As the trial is about to begin both Defendant and Prosecutor state that they are ready to go forward. Then the prosecutor tries to put forth a plea agreement by stating the ultimate outcome of the agreement verbally to the judge - giving as his reason for the agreement the fact that one of his witnesses had previously committed perjury in a federal trial. The judge refuses to hear the plea agreement. When the defense argues that he must hear it the judge refuses because if he denies it the denial would "obviate [the] entire trial" (in Virginia if a judge denies a plea agreement spelling out a specific term the defendant can withdraw his plea and have the case transferred to a different judge). The defense then moved for the judge to recuse himself but the judge refused, claiming "he was willing and able to impartially hear Wilson's case, noting that he did not "hold any ill will' towards [defense counsel] even though he did not approve of [defense counsel's] pre-trial conduct."
There was no plea agreement - Because of possible ambiguity the Appellate Court does a two pronged analysis to determine whether the trial court's determination that there was no plea agreement is valid. First it does an analysis of whether the trial court could have factually concluded that there was no plea agreement and concludes that the trial court could have discounted the prosecutor's statement that there was one in favor of the defense counsel's pre-trial statement that they were very close to having one. It's unfortunate that the Appellate Court engaged in this argument because it is the Court's weakest (and not needed). When the prosecutor stands up and says that there's an agreement "for a total sentence of twenty years with four to serve" there's an agreement; which charges are dropped and which are reduced and which will get suspended time is pretty much irrelevant. The final disposition has been negotiated.
However, that argument doesn't matter because by operation of law there was no plea agreement. Rule 3A:8(c), requires the plea be in writing, signed, and presented in court. When both parties stated that they were ready to go forward with the trial they had no written plea agreement. The key here is that they stated they were ready to go forward when they actually weren't - therefore they were stuck with no agreement reduced to writing as required for a valid plea agreement.
It's the proper legal conclusion but it will bother anyone who actually practices in the courts, Why? Because we all see this Rule violated over and over again as a matter of course. While some judges are sticklers for the requirement that plea agreements be written many will allow a verbal agreement. The rest would have simply given the two sides a few minutes to get a quick plea agreement printed out. It's somewhat shocking to see a judge assert this Rule so stringently.
The trial judge was not required to recuse himself - As stated above, the Appellate Court doesn't come right out and say that the trial judge violated the Canons of Judicial Conduct; it just leaves us with a strong implication and states that the Canons aren't determinative under the law.
The burden of proving that a judge was biased or prejudiced is upon the defendant. Basically, it's going to be impossible for a defendant to prove bias in any case short of the judge looking down at the defendant and saying, on the record, "I hate all people with German names and therefore I find you guilty and sentence you 10 years more than I would someone with an Irish name." As is clear from reading the decision anyone on the Bench is capable of making statements on the record proclaiming how fair he is and how fair he will be at trial. Obviously this is not indicative of whether that judge is actually fair or just saying such things to cover himself on the record (although the Appellate Court seems to award it some weight). Thus, we should probably look toward the actions of the judge. Well, we can't consider the fact that the sentence is excessive because the sentence is within the maximum range and the judge said he imposed the massive sentence because of another reason. How about the fact that he didn't allow the plea agreement to go forward? Well, he was just enforcing the law - far more strictly than normal and with an eye toward keeping control of the case (p. 8) - but he was just enforcing the law. And what about the fact that he sanctioned the defense counsel before the trial? Bias against the attorney doesn't equal bias against the defendant. What about the fact that the judge actively sought the case? Well, the chief judge placed the trial judge back on the case in order to stop a perceived "judge shopping" incident and therefore the trial judge was not prejudiced.
Flames? Maybe not. But lots of smoke. Lots of smoke. The problem is that the smoke seems to come from things other than this specific defendant. Why is this judge so sensitive about "judge shopping"? Maybe because people are trying real hard to get out of his courtroom? I don't know, but it appears he is prepared to take unusual steps to keep cases from going to other judges; there's smoke there. The other source of smoke seems to come from the conflict between the judge and the defense attorney. This may not be directly tied to the defendant but every bit of it effects him. The question you have to ask yourself is whether you think that the defendant would have gotten as staggering a sentence if the judge hadn't been aggravated by "judge shopping" and his conflict with the attorney. I don't know this judge, so I cannot answer that question. Nevertheless, I must admit a strong suspicion. However, suspicion puts the judge in trouble with the Judicial Inquiry and Review Commission, it doesn't reverse this decision.