14 September 2009

Splitting the Magistrate Baby

In Virginia there is a judicial officer known as a magistrate. Magistrates are the guys who are on duty 24 hours a day and their primary job is to decide whether there is probable cause to issue a warrant and set initial bonds (19.2-45). Not only LEO's can go to the magistrate; regular citizens can go and try to get a warrant issued all on their own. The store which gets 30 bad checks a month can go get its own warrants directly, saving us all time. As well, regular citizens can go in and try to get warrants for things such as trespass or assault. Of course, this has made the magistrates the center of a lot of complaints over the years.

There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.

There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.1

This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."

In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.2 Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer3 and the other magistrates to have a bachelor's degree.

The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.

Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.

I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.

Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.

1 The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.

2 I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.

3 It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.


Bill Poser said...

Could you clarify what the effect of a warrant issued by a magistrate on a private citizen's complaint is? Do these warrants authorize the private citizen to make an arrest? Do they order the sheriff to make an arrest? Do they order the prosecutor to indict?

Do they also issue warrants for search and seizure to private citizens? If so, again, what is the effect? Thanks.

Ken Lammers said...

Generally, a warrant issued upon a complaint by a private citizen is then forwarded to local law enforcement officers who are tasked with trying to serve it. They do not give the citizen the power to arrest. They also cannot force a prosecutor to go forward on a case. However, a magistrate is supposed to find probable cause before he issues a warrant and probable cause is the level of proof a prosecutor is supposed to have in order to prosecute a case. As well, the citizen who went in and took out the warrant is one of the voters who elects the prosecutor (or his boss). If there is merit to the case the prosecutor will go forward with it. In felony matters, the fact that the case started with a warrant means it would first have a preliminary hearing in general district court; if the prosecutor decides to prosecute the and if the judge decides there is probable cause then the case is sent to the grand jury for indictment.

To the best of my knowledge, search warrants can only be given to agents of the government. I think the 4th Amendment is meant only to apply to the government.

Anonymous said...

I'm a Virginia LEO. It's interesting to me that the change requiring consultation with the prosecutors or LE was presented to us as effectively requiring citizens to go to the police or at least the CA's office before seeking a felony warrant. I see by the text of the change that the duty to consult is left on the magistrate; I agree that it doesn't make much sense. In fact, while I agree in general that felonies should be reported prior to warrants obtained as a general rule, I can think of several exceptions, like bad checks at a store or embezzlement.

Since I don't see the CA's office setting someone aside to review public cases... I predict that this will lead to a lot of cops being tied up with some stuff that doesn't really need their review...