Wow! That system is nuts!
Fair point. You’re probably right that after the judge’s ruling, the state’s lawyer wouldn’t draft a written agreement. Which does put defense counsel in a bit of a bind, but he could still make an oral offer of proof, something to say that had the judge not ruled that the trial would go on notwithstanding any plea agreement, counsel would have drafted one, but in light of the judge’s ruling, the state’s attorney would not agree to draft one because it would be futile.
We had a judge who said (in response to our motion in limine to preclude certain evidence of unrelated incidents), “Yes, I know that there is binding precedent that holds that this evidence is inadmissible. But I think those cases are wrong, so I’m going to let it in.” Note that there were about a dozen cases holding that particular type of evidence inadmissible, and not a single case permitting the evidence. Nevertheless, the judge liked the plaintiffs, so he gave them that one.
I wish to join myself in the comments of my learned friend, Mr. Muffin.
Without getting into any details, I’m very familiar with the principles governing court-appointed counsel in Canada. This sort of stuff just would never happen. There are generally accepted hourly rates, and flexible prep time allowances for complex cases, based on what is needed to conduct the defence.
Bricker, don’t apologise for the bitterness, sounds like you needed to let some of it out.
And yeah, this sounds like total asshattery. The judge punished the lawyer by using his client, which just sticks in my craw.
It’s times like this that I wish that there were a little more ability for the public to actually have a say in censuring judges. I know the reasons why that shouldn’t be easy - but it’s hard to remember when you see a petty-minded twit on the bench doing shit like this.
And when the lawyers have backed away from taking on such cases due to low rates, the courts have directed that they be paid more so that the people can get proper representation: http://www.findarticles.com/p/articles/mi_m0LVZ/is_2_18/ai_92690563
Here’s a commentary about fees for court-appointed attorneys that should give the nonlawyers a good look at the financial considerations involved. Note that in some jurisdictions it’s an hourly fee ($30/hour in Massachusetts, for example) rather than a set amount – seems a helluva lot fairer to me.
The killer in Virginia is not the hourly fee… .it’s the statutory cap. Remove the cap, and I think everyone could get along nicely.
Even you’re the defense attorney, you have the same issue. Ignore what may happen in later cases with this judge. Ethically, you must, although that can be difficult. Especially in civil practice, where you might have 5 cases currently pending in front of the judge right at that moment, and it may be too late to move for a change of judge, at least as a matter of right, in half of them. So the judge is sticking it to you - he’s making bad legal rulings, or is being unreasonable about scheduling. But nothing’s fatal yet. You might still be able to turn it around. The judge is already showing annoyance about an position that you’re advocating. You know that continuing to push him on the issue (a) won’t change his mind; (b) will really piss him off; and (c) is likely to reduce your chances of winning the case overall. Appeals are expensive and may not succeed. If you can win at the trial level, that’s usually the best strategy. So sometimes shutting up is the best move, even if that might waive an issue on appeal.
And although you’re supposed to disregard what might happen in your other cases, you have ethical obligations there, too. If you push the issue in case #1, and irredeemably turn the judge against you, might have to withdraw as counsel in the other cases, if you can’t get a change of judge. That’s an costly proposition, not only for you, but for the client as well, who must find another attorney who (a) is not the client’s first choice; and (b) will have to learn the facts and law applicable to the case, a step you’ve already taken.
Because it’s very difficult work which involves a lot of personal expense. That lawyer could make more $$ working a phone line.
Um, do you really think that “hanging judges” like this one would be the sort the public would censure?
I don’t know. I wish I could say ‘yes.’
But then there’s the local judge who nearly got re-elected after going off on a teen girl driver (on the road, not the courtroom) and when the cop witnessing the altercation tried to get him to calm down, the bozo said something to the effect of 'I’m a judge and I’ll do what I want to her."
I can hope, though.
In Virginia, judges are appointed by the legislature, and are reviewed periodically for new terms.
Sadly, a “tough-on-defense” stance like this would probably not hurt a judge at all during such review.
One other comment on an ineffective assistance of counsel claim, which was touched upon earlier.
For the indigent defendant in Virginia, Strickland claims are a rocky road. Virginia does not permit ineffective assistance of counsel claims on direct appeal. They can only be raised in collateral, PCR cases… basically a habeas claim.
In Virginia, there is no funding for an indigent habeas petition.
Which basically means that the convicted inmate who wants to raise ineffective assistance must pay for the lawyer or go pro se.