DATE: Monday, September 1, 1997             TAG: 9708270034

SECTION: LOCAL                   PAGE: B8   EDITION: FINAL 

TYPE: OPINION 

SOURCE: BY S. CATHERINE DODSON 

                                            LENGTH:   83 lines

POWER ABUSED, JUSTICE DELAYED

I am a deputy commonwealth's attorney for the city of Norfolk and have been a prosecutor in Norfolk for the past 10 years. I have tried dozens of felony cases against Del. William P. Robinson Jr. of Norfolk.

The hue and cry over Mr. Robinson's abuse of Virginia Code Section 30-5, which allows legislators to postpone court hearings, in order to continue trials in Portsmouth and Northampton County while he went to Tennessee is well-justified. Mr. Robinson's abuse of legislative power to gain advantage in the courtroom has been well-documented before. However, he is not the only legislator who abuses this power.

Sen. Kenneth Stolle's proposal to modify Section 30-5 in order to limit this abuse of power is a good idea, but it does not go far enough, and does not address the real problem.

The real problem lies in the inherent conflict of interest that exists when legislators are permitted to practice law before the same judges whom they appointed to the bench and whom they may reappoint for successive terms.

Judges are chosen for the bench based upon political connections. In Norfolk, all judicial selection decisions are made by Norfolk's Democratic delegates and senators. Since the Democratic Party constitutes a majority in the House of Delegates, Norfolk's Democratic delegates and senators single-handedly select all of Norfolk's judges. Local judges serve for either a six- or eight-year term and are then dependent upon the General Assembly for reappointment.

These delegates then appear before these same judges in both civil and criminal matters. Even the most conscientious, independent judge cannot be immune to the implicit pressure brought to bear by the mere presence before him of the legislator who gave him his job. Even judges who will not later be seeking reappointment due to age or retirement will well recall who put them on the bench when that legislator appears before them. Judges know that legislators can and sometimes do interfere with the judicial reappointment process when a judge has ruled in a case contrary to the wishes of a legislator.

This political reality causes judges to make rulings, such as granting continuances, upon flimsy excuses or blatant misconduct by a legislator when that behavior would never be tolerated, much less condoned, if committed by a different attorney.

For example, a legislator representing a criminal defendant can get his case continued in Hampton Roads courts just by deliberately failing to appear in court. When this does in fact happen, the judge simply tells the prosecutor handling the case to find the legislator and get another court date. Maybe the judge will apologize to all of the commonwealth's witnesses who came to court for nothing. Out of frustration, maybe the judge will chastise the prosecutor who is in court and is ready to try the case. However, the legislator will not be held in contempt, fined or otherwise punished by the judge. Why? Because the judge wants to keep his job and to get reappointed.

Legislators do not need Section 30-5 to get their cases continued. They simply do not have to show up and their cases will be continued for them. The rest of us are then left picking up the pieces and starting all over again.

When legislative power is abused in order to delay a criminal trial, all of society suffers. Justice delayed is most often justice denied. When criminal cases drag on and get continued over and over, victims and witnesses get burned out, frustrated, angry, disgusted and disillusioned, all rightfully so. Victims feel revictimized by the system and unable to move on with their lives. Over time, witnesses may move away, become deployed, be intimidated, get arrested or even die.

The commonwealth, which has the burden of proving its case, often loses witnesses when cases are repeatedly continued. All trial lawyers know this. When the criminal justice system allows a small number of lawyers to exploit this, by virtue of their status as legislators, it corrupts our whole judicial system and greatly undermines the faith and respect all citizens need to have in that system of justice. That this small number of lawyers are the very legislators who have been entrusted to make our state's laws is even more reprehensible.

The solution to this problem is obvious. Simply prohibit attorney legislators or members of their law firms from being allowed to practice in front of the judges whom they have the power to appoint. What would be the problems? Some legislators would suffer a loss in income. Some people would have to choose between being a full-time trial attorney and a part-time legislator. The worst that would happen is that we might end up with fewer lawyers in the General Assembly. The best result would be that judges would have the freedom to exercise truly independent judgment, unaffected by personal concerns of job security or political patronage. MEMO: S. Catherine Dodson is Norfolk deputy commonwealth's attorney.

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