Any time before a judge accepts a guilty plea and finds a defendant guilty, the judge may amend the charge to a different, lower crime and find the defendant guilty of the lower crime, according to an important recent opinion from the Supreme Court of Virginia.
Most criminal law attorneys long thought that prosecutors choose the charges (the alleged crimes on which the defendant is accused), the defendant pleads guilty or not guilty to those charges, and the judge adjudicates the case on those charges — finding the defendant guilty or not guilty. It was a separation of powers staple: the legislative branch defines crimes, the executive branch chooses which crime to accuse a defendant of having committed, and the judicial branch finds the defendant guilty or not guilty of the accusation. A recent decision from the Supreme Court of Virginia, however, explicitly says that judges have the power to choose the criminal charges — and that this power supersedes that of the prosecutor to choose! So, if the prosecutor wishes to prosecute a person for DUI, but the judge wishes to adjudicate the person for the lower crime of Reckless Driving, the defendant is tried for Reckless Driving.
In a “made for television” showdown, Arlington’s Commonwealth’s Attorney, prosecutor Theo Stamos, sued one of Arlington’s General District Court judges, Thomas J. Kelley, Jr., seeking to have him ordered to convict and sentence a defendant for DUI as charged by her. In that case, the defendant had been charged with DUI and pleaded guilty. However, instead of finding him guilty and sentencing him, Judge Kelley continued the case for a period of time and then, over the objection of Ms. Stamos, found the defendant guilty of the lower crime of Reckless Driving. The Arlington Circuit Court ordered Judge Kelley to sentence the defendant on the DUI charge, and Judge Kelley appealed.
The Supreme Court of Virginia held that judges could, on their own, and over the objection of the prosecutor, amend the charging document — the warrant — to an entirely different crime. The Court cited Virginia Code § 16.1-129.2 as giving it specific statutory authority to do so. Thus, one charged with DUI could be found guilty of Reckless Driving by the judge.
The dissent wrote that the Constitution prohibited judges from doing anything but adjudicating the charges brought to it by the prosecutor. (“The legislative, executive, and judicial branches of government “shall be separate and distinct” and no one branch can “exercise the powers properly belonging to the others.” Va. Const. art. III, § 1.”) However, this was only a one-Justice dissent.
Therefore, the rule of law in Virginia is that individual judges have the power to amend criminal charges to whatever charges they see fit, whether the prosecutor approves or not. Criminal defense attorneys with clients who appear to be guilty as charged, but who have strong mitigating circumstances, may wish to file a Motion to Amend the warrant in advance of pleading to it, arguing those mitigating circumstances in an effort to persuade the judge to reduce the charges. Prior to this opinion, defense attorneys, in the plea bargaining process, would negotiate with the prosecutor in an effort to affect which charges will be brought against the defendant. Now, defense attorneys can bypass the prosecutor and seek a lesser charge from the judge.
Like most things in life, this decision could “cut both ways.” While the defendant in this case was probably delighted to have the judge reduce his DUI to a Reckless Driving conviction, there may be a future defendant who is not guilty of DUI and would prefer the judge to find him not guilty instead of finding him guilty of a lower crime after hearing the evidence.