Mitch Mobley said on July 15, 2009  

Ken: Sorry for being off-topic, but I'm working as an Asst. C/W atty in Russell Co. Now. Have you heard of any new legislation passed recently that requires all assts. to sign something called a "waiver of conflict of interest?" I did a quick sweep on google and didn't find anything, but haven't dug too deep yet. If you or any of your Virginia readers can shed some light, it would be much appreciated. Thanks, Mitch Mobley

 Ken Lammers said on July 17, 2009  

Send me an email - lammersk at yahoo dot com

 other donald said on July 21, 2009  

It stands to reason that evidence introduced in a judicial sentencing hearing would be limited just as it is in a jury hearing.

Why? Judges at sentencing certainly consider lots of other things that sentencing juries can't see - most notably, sentencing guidelines.

The second the parties start talking about statements made during the plea negotiations they are effectively turning the judicial sentencing hearing into an extension of the plea negotiation in which the Court is forbidden to participate.

This seems like a real stretch. I take it the rule against judges taking part in plea negotiations is based on recognition of the fundamental unfairness of such a scenario: A defendant can't be expected to feel free to turn down a bargain that a judge is offering, knowing that in the event no bargain is made, the same judge is going to decide his cause.

If the parties are at a contested sentencing hearing, it's pretty clear no bargain will be made. A judge who learns, e.g., that the CA offered 6 months at the plea-bargain stage is now arguing for 2+ years, is not going to step in and restart bargaining...s/he's just going to learn that there's evidently room for viewing the offense and the defendant's background from a pretty wide range of different views. Which any defense attorney will have to substantiate by adroit reference to the other evidence before the court.

 Ken Lammers said on July 25, 2009  

As to the first part, I think I'll have a post about the subject soon.

As to the second, the entire purpose of introducing the failed negotiations is to involve the judge in them. It is an argument that the prosecutor should be held to his offer or that the judge should impose no more than the prosecutor's prior offer.