In Virginia, who judges the judges?

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She was nervous when she took the witness stand, in every way. Katie Orndorff, 33, was testifying in her boyfriend’s domestic violence trial in a Leesburg courtroom. Then, by a quick, strange and terrifying turn of events, the witness / victim became the accused and before she knew it was dragged to jail after a judge summarily declared her guilty of contempt.

His supposed crime? She had smoked marijuana at home – since July 1, something as legal in Virginia as drinking a beer – to calm her nerves before confronting her former boyfriend and alleged abuser – accused of having it punched in the face – in court where prosecutors assured her she was safe.

During Orndorff’s testimony, Loudoun County Circuit Judge James P. Fisher steered the proceedings in a whole new direction, effectively taking on the role of prosecutor. The former Commonwealth lawyer asked her if she was using drugs. She admitted to having smoked weed a few hours earlier.

Prosecutors, however, said the woman showed no signs of debilitation – no slurred speech, no inconsistency, no drowsiness – but was clearly nervous. The same would be expected of a woman whose testimony could put her executioner in prison or perhaps expose him to his wrath if he was acquitted.

Before she knew what had happened, Fisher had sentenced Orndorff to 10 days in prison without allowing him the benefit of a lawyer or even informing him of his rights. Fisher has declared the lawsuit quashed in the assault and battery proceedings against his alleged attacker. Orndorff spent two days behind bars before being released on $ 1,000 bail pending an appeal of her conviction. Fisher canceled a hearing Thursday on a motion to quash the contempt charge after dismissing the motion as “entirely without merit.” Protesters who gathered outside the Loudoun County courthouse called for an investigation into Fisher’s actions.

“This judge should not be on the bench,” said Lisa Sales, domestic violence survivor and women’s rights activist, according to report by Mercury Ned Oliver.

The courtroom drama portrayed in the reports was both Kafkaesque and infuriating. The terrified and confused woman was once again victimized as MPs pushed her from the courtroom to a jail cell on the orders of a judge. Dismayed and apoplectic prosecutors. Deferred liability and possibly a free pass for an accused with two previous domestic violence convictions. A harsh and disheartening message for battered women.

John Grisham would have a hard time getting readers to believe a scene like this.

Likewise, Fisher’s actions violated that of Virginia Canons of Judicial Conduct? Although they seemed outrageous to me and the thirty or so protesters on Thursday on the courthouse lawn, I am not a lawyer and do not know what the threshold is for making such a decision. Maybe Fisher’s actions were legally justified. Maybe they were beyond pallor. Who decides ?

According to the law, it is the Commission of inquiry and judicial review. It is the state agency that, since 1971, has been charged under the Virginia Constitution and state laws with verifying allegations from the public, lawyers, court staff and others. lawyers against judges accused of misconduct or of physical or mental deficiencies which render them unfit to practice. work.

Prior to 1971, the only way to remove a Virginia judge for cause or infirmity was removal by the General Assembly. This only happened twice, in 1903 and 1908.

Almost everything the JIRC does is, by law, secret. Even lawyers like Brad Haywood who have filed complaints with the JIRC against judges for alleged violations rarely learn anything from their complaints.

“There is no transparency at all. It’s a black box, ”said Haywood, the chief public defender of Arlington and Falls Church, who said he filed several complaints with the JIRC.

The only feedback he said he never received was a standard two paragraph letter from JIRC acknowledging receipt of his complaint and advising him that the commission will do what it deems most appropriate.

“It’s not something a defense lawyer does lightly. There is a belief that when you do this, the judges are ready and they will come after you. Most lawyers, Unless something terrible happens, they won’t file a complaint with JIRC, ”Haywood said.

The seven-member commission has the power to dismiss a complaint. If he justifies an accusation but determines that it does not reach the level of censorship, dismissal or forced retirement of a judge, he can inform the judge of his findings and dismiss the complaint – essentially a warning. – while reserving the right to resuscitate the charges if the judge faces another valid complaint.

Complaints only emerge from their cocoon of secrecy if the JIRC finds a sufficiently credible and egregious charge to be referred to the Virginia Supreme Court for decision. The court conducts its own proceedings from scratch and determines whether a judge should be censored, removed or forced into retirement, or whether a complaint should be dismissed. According to the JIRC, of ​​the thousands of complaints it handled over its 50 years, only 15 judges have been brought to court: seven have been censored, three have been dismissed and five have been dismissed.

For a more timely snapshot, annual statistical summaries Commission records to the General Assembly show that JIRC received 2,274 complaints from November 2015 to October 2020. Two complaints (involving a total of three judges) reached the High Court, according to a published report Supreme Court opinion online. See here and here for examples.

There is, however, a completely confidential alternative to submission to a public Supreme Court proceeding that the JIRC can offer judges in cases where validated claims are not deemed serious enough to attract the attention of the court. The commission has the discretion to enter into “monitoring agreements” with judges. Both restorative and punitive, judges who follow the terms and conditions of an agreement and successfully complete the process can have charges dismissed. Failure to comply with the agreement is another charge of misconduct. Some jurists argue that the agreements are overbreadth not permitted by state law, but they are authorized by a state Supreme Court decision.

Confidentiality permeates the judicial branch of state government. In Virginia, juvenile court and family relations judges up to Supreme Court justices are elected by the General Assembly in a largely veiled process.

Once appointed for a number of years, judges have broad power to act out of public view, with the exception of open court proceedings such as hearings, pleadings or trials and the Most of the files related to these issues.

Much of the secrecy is reasonable. Hiring decisions in the public and private sectors are almost exclusively made in private. Judges also need some latitude to conduct sensitive closed-door proceedings in court cases.

But do Virginians owe more transparency and accountability about the legitimately dubious actions of judges to whom the law grants great power over the liberty and property of individuals?

Open government advocates think so.

“It’s such a shame that I have a bad habit of pretending it doesn’t even exist,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government, a law graduate from the University of Colorado. Courts are prohibited with respect to Virginia’s Freedom of Information Act.

“There’s just no way to hold it to account. There is nothing you can grab like you would a state agency or local government to say to them, “You should be more responsible! »», She declared. “Nothing sticks when you deal with the law. “

It’s not as if the press and the public are trying to interfere in legitimately closed court proceedings. They are not.

“These guys are buying chairs. They pay salaries. They talk about extensions, and it should all be disclosed like anything else, ”Rhyne said. “Yet anything a judge has is prohibited. “

Which brings us back to Judge Fisher and the question of who judges judges. Has a complaint been filed against him? Did his actions violate the Canons of Judicial Conduct? And will we ever know, one way or another?

If the last five years contain a clue, the odds are about 2 in 2,274.


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