Advisement: Theory Behind It

In reaction to the posts last week that I made explaining why the Court of Appeals is wrong in its continuing efforts to deprive trial courts of the common law practice of taking cases under advisements I was asked a couple questions in the comments:

1) A judge takes a jury verdict under advisement, to be dismissed after a period of time. "In doing so, he thumbs his nose at both the General Assembly's decision to define an offense and a punishment and your decision (as a member of the executive branch) to prosecute the offense. Doesn't this mean that the unelected judiciary is the supreme branch of government??"

2) "[W]hy do you think it is the judiciary - which is not accountable to the electorate - that should be vested with this authority rather than the elected prosecutor?"

First of all, let's discuss the way Virginia's constitution creates its government. It is not the tripartite government which everyone seems to be assuming. To begin with, prosecutors in Virginia are not a part of the executive (gubernatorial) branch. They are "constitutional officers." Virginia's constitution sets up a General Assembly (Article IV), Governor (Article V), Judiciary (Article VI), and Constitutional Officers (Article VII Section 4). Constitutional Officers, including the Commonwealth Attorney, are answerable to the people of their county or city, not to any of the three branches coming out of Richmond.

As well, the Judiciary is not a completely free, stand alone branch. It is neither unelected nor unaccountable. However, it is elected by and accountable to the General Assembly (Article VI Section 7). In Virginia, when you stand in front of a judge you are standing in front of someone empowered with the imprimatur of the General Assembly. The General Assembly is constitutionally forbidden to intervene in individual cases (Article IV Section 14) but it places into position the trial judges who are so empowered.

The General Assembly continues to refuse to pass a simple statute banning the practice of taking cases under advisement. It places judges in trial courts with the knowledge that they have this power because the General Assembly has not stripped this power from judges through a general law. By placing a judge in a courtroom the General Assembly is stating that it trusts this judge's discretion in the use of advisement powers. Thus, when a judge chooses to take a case under advisement it is not the act of an unaccountable judge, it is the alignment of both the judiciary and the General Assembly in a decision to mitigate the local Commonwealth Attorney's decision to prosecute.

So, the answer to question number 1 is that it looks to me like the General Assembly is the supreme branch of government. It has both the ability to choose to write advisement out of existence and / or the ability to (re)elect judges who will use advisement in a manner the General Assembly finds appropriate.

As for question 2, I don't think Commonwealth Attorneys should be the final arbiter in court. At core, the duties of a Commonwealth Attorney are (1) to decide whether a case should be prosecuted, and (2) to present the case to the finder of fact / sentencer. I realize that in the modern era prosecutors perform a sentencing function in 90% of cases through plea agreements and I think this misinforms people's perceptions.

The second a defendant decides to go to trial or just plead guilty and be sentenced by the judge the case disposition function gravitates right back to where it belongs - the judge. Commonwealth Attorneys were never meant to determine the outcome of a case. In a perfect world, with infinite resources, plea agreements would be an anathema and we would never have drifted into a mindset which informs us that prosecutors should have any ability to determine a sentence or whether the circumstances are such that a sentence should be mitigated.

However, we live in the real world and in the real world I think the Commonwealth Attorney should have the power to make a plea agreement to take a case under advisement, with facts stipulated by the defense to be sufficient to convict if the defendant doesn't complete conditions X, Y & Z. Of course, for that to happen the judge has to have the power to take cases under advisement rather than being required to instantly find guilt and sentence the moment facts in the courtroom are sufficient for conviction. Again, a simple statute written into law by the General Assembly could, rather than eliminating advisement, limit advisement to cases in which the Commonwealth agrees, but the General Assembly has never passed either statute. In my opinion, up until the moment the General Assembly has passed one or the other, both the judge and the Commonwealth Attorney should be able to use advisement in the courtroom.

Look, I understand why Commonwealth Attorneys worry about and dislike judges being able to take cases under advisement. No one likes their will to be overborne by that of another - including me. Every single one of my arguments in court is insightful, concise, relevant and well thought out. No judge should ever disagree with me and every motion, objection, and sentencing recommendation I make should be treated as though it were sacred script and followed down to the last jot and tittle. Unfortunately, I don't seem to be able to convince the judges of this. More than once a judge has refused to do what I tell him should be done. When this happens I do what every good prosecutor does: I go back to the office and whine and moan and gripe to my brethren (and sistren), get it out of my system and go back to court the next day to deal with the next case.

Looking at the issue with a little more seriousness , any discretion given to any party in the courtroom is subject to abuse. A proper use of advisement would be the application of equitible circumstances in a particular case to mitigate if factors called for it. A judge will mitigate a young prosecutor who is feeling his oats and prosecuting a grandmother for sticking a can of peas in her pocket¹ or mitigate cases wherein the judge perceives that local political pressures (via merchants, officers, the local paper, etc.) are causing a technically correct, but equitably dubious prosecution to go forward. In these types of cases, the judge, as appointed by the General Assembly, represents the interest of the Commonwealth of Virginia as a whole in mitigating potential local excesses.

Abuse of advisement would come when judges use it too often so that it becomes a blanket treatment. Some judge will decide that nobody should get convicted for stopping on the way home from work and tossing back a brew (or ten) and start taking large numbers of DUI cases under advisement. Another might decide that marijuana shouldn't be illegal and start taking all those cases under advisement. In doing this the judge is invalidating the general laws instead of mitigating particular cases due to unique circumstances. However, there is already a solution built into our system for this. The judge goes back in front of the General Assembly every few years for re-election. At that point he should be called to task for his advisements. "Judge Smith, you took 750 cases under advisement in the last 3 years. 450 of those were without the agreement of the Commonwealth Attorney and 400 of those were marijuana cases. Please explain to this committee why you alone, among all the judges in the Commonwealth, don't feel that you should enforce a law written by this legislature."

If they don't like the answer the members of the General Assembly do not have to re-elect that judge. While the General Assembly hasn't shown a desire to eliminate advisements, it has shown itself quite capable of questioning judges over their reductions of convictions.


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¹ I kid you not, I've had a discussion with more than one local attorney, usually older, who tells me that she gets her hands full and sticks things in her coat pockets all the time while shopping. I think that some of our older citizens are still in a mindset from a more trusting age when people hooked on oxy's weren't trying to steal anything not nailed down.