Judges’ complaint, prosecutor’s response detailed

The Virginian-Pilot has obtained the ethics complaint that Virginia Beach circuit judges filed against Commonwealth’s Attorney Harvey L. Bryant III and Bryant’s formal response to the complaint.

The judges said they were concerned about reports that Bryant had said at a Republican breakfast in February he was keeping a record of “illegal conduct” by Virginia Beach judges “until I need it.”

That wasn’t quite what I said, Bryant responded, and the comments were a small part of a broad-ranging discussion of his office’s activities and answers he gave to questions about the criminal justice system.

Bryant said in his response that he does keep track of when judges defer a finding of guilt “without statutory authority” when the evidence would support such a finding and that he would consider it appropriate to convey that information when judges come up for reappointment.

Judges and prosecutors long have been at odds over whether a judge can defer judgment in cases other than where there is specific statutory authority to do so. First-time drug offenses are one category in which the legislature has granted such authority.

Some judges contend that they have the inherent authority to take such action in the absence of an explicit prohibition. Drunken driving, theft and trespass are three categories of cases in which judges sometimes defer judgment and dismiss a charge if a defendant has no further legal difficulty. In February 2003, the Virginia Supreme Court rejected a request by a Roanoke prosecutor for a writ of mandamus or prohibition that would have required a judge to make a finding of guilt in such cases.

Bryant noted that comments at the breakfast were in the context of his observation “that I wouldn’t trade our bench for any other bench I knew of or had heard of my 32 years of practice in Virginia.”