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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Judge Leaving the Courtroom was a Reasonable Response to an Unreasonable Situation

For the media report of this story, see The Roanoke Times. My view of this incident is a little different — Judge Dillion had ruled and told the attorney to move on, but he persisted, she ruled again, but he persisted, she then told him to make his proffer (which does not require the judge to be present as its not part of the record relevant to her decision, only for appeal) and left the bench instead of holding the attorney in contempt. The judge was actually helping the attorney avoid being fined and possible jailed by absenting herself so that she was not forced to cite him (and thereby giving the defendant grounds for appeal). The US Attorney is correct that the argument was neither relevant to the purpose of the proceeding nor based on more than the “gossamer imaginings of defense counsel,” as one appellate court has referred to these types of arguments.

I have a new name for them . . .Post-Truth America Arguments.  For at least the last five years, and I would argue that it started before the Trump campaign and presidency — certainly at least as far back as birtherism and in tracing its origins one could probably go back the Army-McCarthy hearings in which the Senator infamous proclaimed that he had documents proving {insert ever increasing number here} members of the Defense Department were Soviet spies and avowed communists — America has been plagued by a “belief” that objective truth does not exist.  This belief — delusion is a better word — has been slowly creeping into our courtrooms for years, but has suddenly become a torrent, with criminal defense attorneys (and sometimes prosecutors) making assertions based not on facts, but upon a world view in which all public servants are corrupt, the government is the enemy of he people, and only they — the ennoble and embattled few who see the truth — can see clearly how rotten the system is.

How did we get to this point?  Not having the training in sociology and psychology that would allow me to give a competent answer, I will not attempt to do so.  But I will suggest that, at least as to America’s courtrooms, attorneys behaving as they ought, is the first step in combating it — and the attorney in this case was not behaving as he ought.  A courtroom is supposed to be a place where we seek the truth, not disregard it.  I realize that attorney arguments are not “evidence” and thus are not bound by the witness’ oath to speak “the truth, the whole truth, and nothing but the truth,” however, attorneys are bound by their ethical duty to address the court with candor even while zealously defending their clients.  In my opinion, this attorney took the former principle to an unreasonable extreme when he wholly abandoned the latter.

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