Present: Koontz, Kinser, Lemons, and Agee, JJ., and
Carrico, Compton, and Russell, S.JJ.
JUDICIAL INQUIRY AND REVIEW
COMMISSION OF VIRGINIA
v. Record No. 042306 OPINION BY JUSTICE CYNTHIA D. KINSER
April 22, 2005
PAUL M. PEATROSS, JR., JUDGE OF THE
SIXTEENTH JUDICIAL CIRCUIT
Pursuant to Article VI, Section 10 of the Constitution
of Virginia, the Judicial Inquiry and Review Commission
(the Commission), filed a complaint in this Court against
Paul M. Peatross, Jr., judge of the Sixteenth Judicial
Circuit. The Commission alleged that certain charges
against Judge Peatross for violating the Canons of Judicial
Conduct for the Commonwealth of Virginia (the Canons), Va.
Sup. Ct. R. Part 6, § III, were well-founded and of
sufficient gravity to warrant censure or removal. 1 This
Court conducted “a hearing in open court.” Va. Const. art.
VI, § 10. We conclude that there is not clear and
convincing evidence that Judge Peatross engaged in either
“misconduct while in office” or “conduct prejudicial to the
1
Rule 2M of The Rules of the Judicial Inquiry and
Review Commission (Commission Rules) states that the term
“ ‘[w]ell [f]ounded’ shall mean that the Commission has
found based upon clear and convincing evidence and
supported by facts and sound judgment that the misconduct
has occurred.” See 15 VAC 10-10-10.
proper administration of justice.” Id. Therefore, we will
dismiss the complaint.
I. FACTS AND PROCEEDINGS
The Commission issued two notices, one dated April 15,
2004, and the other dated July 13, 2004, stating charges
that Judge Peatross had engaged in misconduct while in
office and had engaged in conduct prejudicial to the
administration of justice. 2 The Commission conducted a
formal hearing on each notice at which the Commission and
Judge Peatross presented evidence. 3 Thereafter, the
Commission issued orders dated September 21, 2004, and
October 12, 2004, respectively, in which it set forth its
findings and conclusions of law. In each instance, the
Commission directed that a formal complaint be filed in
this Court, seeking Judge Peatross’ censure or removal from
office. We will address the charges, the evidence adduced
at the formal hearings, and the Commission’s findings with
respect to each of the notices.
A. April Notice
2
Commission Rule 2L provides the term “ ‘[c]harge’
shall mean an Inquiry that the Commission determines, after
a preliminary investigation by counsel and upon the
recommendation of counsel, could be a violation of the
Canons of Judicial Conduct or the basis for retirement,
censure, or removal of a judge.”
3
The formal hearings took place on June 8, 2004, and
September 21, 2004, respectively.
2
In the April notice, the Commission charged Judge
Peatross with violating Canons 1, 2, 2A, 3B(2), 3B(4) and
3B(7). The charges arose out of Judge Peatross’ handling
of three separate criminal cases in the Circuit Court of
Albemarle County: (1) Commonwealth v. Nakesha A. Mills; (2)
Commonwealth v. Aimee J. Jacques; and (3) Commonwealth v.
Matthew C. Rexrode. We will address these cases seriatim.
1. Commonwealth v. Mills
In Mills, the defendant was charged with attempt to
obtain money by false pretense. On September 12, 2003, the
defendant appeared before Judge Peatross for the purpose of
entering a guilty plea to the charge. During the plea
colloquy, the defendant seemed uncertain about how to
respond to some of the questions asked by Judge Peatross.
Consequently, Judge Peatross allowed the defendant and her
attorney, James Hingeley of the public defender’s office,
to converse privately in an office outside the courtroom.
The Commonwealth’s Attorney, James L. Camblos, III,
followed them into that office. Camblos told Hingeley that
he had decided to reduce the defendant’s charge to a
misdemeanor because of her favorable appearance, good
attitude, and lack of prior criminal record.
When the parties returned to the courtroom, Camblos
announced to Judge Peatross that he wanted to reduce the
3
felony to a misdemeanor. Judge Peatross did not allow the
reduction in the charge but, instead, gave the
Commonwealth’s Attorney the option either to nolle prosequi
the charge or to proceed with the felony. The
Commonwealth’s Attorney refused to choose either option.
Judge Peatross then entered an order, sua sponte, to nolle
prosequi the charge.
At the hearing before the Commission, Judge Peatross
explained that, in his opinion, the Commonwealth’s Attorney
should have moved to reduce the charge before arraignment
rather than doing so after the defendant had already
entered a guilty plea to the felony. He further stated
that, if the Commonwealth’s Attorney intended to handle the
charge as a misdemeanor, he should have done so earlier in
the general district court. Judge Peatross indicated that
he did not favor a policy that circumvented the general
district court where misdemeanor charges should be tried.
Judge Peatross also acknowledged that he had never
previously entered a nolle prosequi on his own motion but
believed when he did so that either the Commonwealth or the
court could make such a motion. In his answer to the
charges filed by the Commission and in his testimony, Judge
Peatross, however, admitted that his understanding of the
law was wrong, and that, under Virginia law, a judge has no
4
authority to enter a nolle prosequi except upon motion of
the Commonwealth.
After the Mills case was concluded, Camblos wrote a
letter to Judge Peatross expressing his reluctance to make
suggestions to the court because of what Camblos termed an
“angry reaction” from the judge. Camblos, nevertheless,
wrote that he viewed Judge Peatross as consistent, thorough
in his analysis, and fair. Judge Peatross replied, in a
letter to Camblos, that his responses in court were not
personal but that he simply wanted to operate the court in
an efficient manner. Judge Peatross believed that Camblos’
handling of the Mills case had not been efficient. Judge
Peatross also stated that “[c]ircuit [c]ourt is not where
this [c]ourt wants to handle misdemeanor cases, unless they
occur at the same time as a felony, or come up on appeal.”
Based on the evidence, including an audio recording of
the Mills guilty plea hearing, the Commission found that
Judge Peatross had nolle prosequied a felony charge without
authority to do so and that he took such action because of
his “displeasure and impatience” with the request by the
Commonwealth’s Attorney and the defendant’s attorney to
reduce the felony to a misdemeanor. The Commission further
found that the “judge’s uncivil behavior toward the
attorneys was greatly disproportionate to any action or
5
inaction by the attorneys.” Finally, the Commission found
that Judge Peatross had established a policy that he would
not hear misdemeanor charges in his court unless they were
companion cases to one or more felony charges against the
same defendant. The Commission concluded that Judge
Peatross’ actions in handling the Mills case violated
Canons 1, 2, 2A, 3B(2), and 3B(4).
2. Commonwealth v. Jacques
In Jacques, the defendant was charged with robbery,
use of a firearm in the commission of robbery, one felony
charge of failure to appear in the Circuit Court of
Albemarle County, and four misdemeanor charges of failure
to appear. 4 On December 10, 2003, six days before Jacques’
scheduled jury trial, the Commonwealth’s Attorney, Camblos;
the defendant’s attorney, Llezelle A. Dugger; and the
defendant met in Camblos’ conference room to discuss the
terms of a possible plea agreement. The parties eventually
signed an agreement in which the defendant agreed to plead
guilty to the robbery and firearm charges with certain
recommended sentences. According to Camblos, Dugger asked
him about the felony failure to appear charge, and Camblos
4
One of the misdemeanor charges was dismissed as being
duplicative of the felony failure to appear charge.
6
told her that he did not care about that charge, stating,
“I will ask the judge to nol pros it.”
Camblos, with Dugger’s permission, then took the plea
agreement to Judge Peatross’ office. 5 Judge Peatross looked
at the agreement and asked Camblos to explain its terms.
After Camblos did so and also described the evidentiary
difficulties he would have in trying the case, Judge
Peatross indicated that the plea agreement seemed
5
Judge Peatross was asked at the Commission hearing
about what policy, if any, he had regarding plea agreements
being presented to him. He answered:
I have no policy regarding plea agreements.
I have no requirement or policy about reviewing
plea agreements in advance. If a plea agreement
is reached in a case, what normally happens is
the attorneys will send it to my office for me to
look at in camera without any attorneys there, or
I may see it in chambers right before I go out to
arraign. I do not review plea agreements, I do
not discuss plea agreements, I do not negotiate
plea agreements.
I challenge them to give me any case where I
have reviewed a plea agreement before trial in
chambers, or anywhere, and rejected it and then
go out and hear it. It simply has not happened.
I will agree that attorneys may have come to
me and say here is a plea agreement, will you
accept it or reject it, and I may give them
indication of feeling, but I don’t formally act
on it. That’s against the Rule, and I need to go
[into] court and review the plea agreement with
the defendant on the record.
If I am reviewing plea agreements in chambers and
negotiating them, that’s in violation of the Rule and
I have no business being a judge.
7
reasonable but asked what was happening with the failure to
appear charges. According to Judge Peatross’ testimony at
the Commission hearing, Camblos stated that he had
forgotten about those charges and needed to talk to Dugger
about them. Camblos, however, testified at the Commission
hearing that he told Judge Peatross that he had agreed to
nolle prosequi the felony failure to appear charge.
According to Camblos, Judge Peatross stated he did not want
the charge disposed of in that manner and “flicked” the
plea agreement across the table to Camblos.
After leaving Judge Peatross’ chambers, Camblos took
the plea agreement back to Dugger and explained what had
occurred. The defendant and the two attorneys then entered
into a second plea agreement. This agreement retained the
original terms of the first agreement as to the robbery and
firearm charges but added a provision stating that the
felony failure to appear charge would be tried by a jury on
December 16, 2003. The terms of the second plea agreement
also provided that the defendant would plead guilty to the
misdemeanor failure to appear charges with the sentences to
“be at the discretion of the court.”
Later that same day, Judge Peatross, at the request of
Camblos and Dugger, convened a hearing to take the
defendant’s guilty pleas. During that hearing, Judge
8
Peatross accepted and signed the second plea agreement,
which contained a statement “[t]hat no [j]udge of the
[c]ircuit [c]ourt has participated in any discussion
leading to this Agreement under Rule 3A:8.” On the robbery
and firearm convictions, Judge Peatross sentenced the
defendant in accordance with the terms of the plea
agreement. As to the three misdemeanor failure to appear
convictions, Judge Peatross sentenced the defendant to 12
months in jail on each charge, with the sentences to run
consecutively.
The next day, Camblos delivered to Judge Peatross a
letter stating that he “had agreed to ask for a nol prosse
on [the felony failure to appear charge] when we entered
into the plea agreement.” Camblos also tendered a proposed
order, which had been endorsed by Dugger, entering a nolle
prosequi of the felony failure to appear charge. Camblos
testified at the Commission hearing that, when he entered
into the second plea agreement, he intended to go forward
with a jury trial on the felony failure to appear charge.
He changed his mind, however, because he believed that
Judge Peatross’ sentences on the misdemeanor failure to
appear convictions were “extremely excessive and way beyond
what was right or proper.”
9
In his testimony at the Commission hearing, Judge
Peatross explained his rationale for the sentences he
imposed on the misdemeanor convictions:
The 12-month sentence on each of the misdemeanors, or
36 months, meant an actual sentence of 9 months. . . .
[M]y thinking was that if the jury gave a harsh
sentence on the felony failure to appear, I could
suspend that 36 months. If the jury did nothing to
him, I thought that a 9-month sentence for four
failure to appears, if he is guilty on the felony
failure to appear, was a fair sentence, so I didn’t
think I was giving a harsh sentence, and I left it
within my discretion to adjust it if the jury gave a
harsh sentence on the felony failure to appear, which
could be up to 5 years.
Judge Peatross subsequently convened a hearing on
December 15, 2003, to discuss Camblos’ letter and the
proposed nolle prosequi order. During questioning by Judge
Peatross about the change in how the felony failure to
appear charge was to be handled, Camblos explained that the
reference in his letter to “the plea agreement” was to the
first agreement. Camblos avowed to Judge Peatross that,
when the second plea agreement was entered into and
accepted by the court, there was no separate agreement to
move for a nolle prosequi of the felony failure to appear
charge.
During that hearing, Dugger indicated to Judge
Peatross that she agreed with the contents of Camblos’
letter but understood the letter to refer to the first plea
10
agreement. Like Camblos, she stated that, when the court
accepted the second plea agreement, there was no agreement
concerning the felony failure to appear charge other than
to try it before a jury. She first learned of the proposed
change in disposition the next morning, when she received a
telephone call from Camblos asking her to endorse an order
entering a nolle prosequi of the charge. At the Commission
hearing, Dugger testified that she and Camblos had already
reached their oral agreement about the felony failure to
appear charge when she and the defendant signed the first
plea agreement but later stated that there was no such oral
agreement at that time. In any event, she acknowledged
that the first plea agreement did not represent the total
agreement between the parties.
At the conclusion of the December 15, 2003 hearing,
Judge Peatross stated orally from the bench that he was
going to remove both attorneys as counsel of record in the
Jacques case. Subsequent to the hearing, Camblos and the
defendant filed separate motions to reconsider. 6 Camblos
again asserted that the plea agreement mentioned in his
December 11, 2003 letter to Judge Peatross referred to the
initial agreement and not the second one. In his motion,
6
James Hingeley, who was Dugger’s superior at the
public defender’s office, filed the motion on behalf of the
defendant.
11
the defendant argued that the court had no lawful basis to
remove Dugger as his defense counsel and that the removal
and delay in his trial was prejudicial to him.
On January 6, 2004, Judge Peatross entered an order
removing Camblos “as counsel for the Commonwealth” and
Dugger “as counsel for the [d]efendant” because of their
“misrepresentation” to the court concerning the disposition
of the felony failure to appear charge. The next day, he
denied both motions to reconsider. Judge Peatross
explained at the Commission hearing that he took those
actions because he had concluded that Camblos and Dugger
had violated the plea agreement by submitting an order
which nolle prosequied the felony failure to appear charge.
He believed that, if Camblos had merely changed his mind,
Camblos should have filed a motion to amend the plea
agreement.
Judge Peatross also entered an order on January 7,
2004 dismissing the felony failure to appear charge without
prejudice. The order stated:
It appearing to the [c]ourt that the [c]ourt had
good cause to relieve the Commonwealth’s Attorney and
[c]ourt appointed counsel for the [D]efendant from the
case for misconduct in misrepresenting facts
concerning the December 10, 2003 plea agreement to the
[c]ourt and, through no fault of the Defendant, it
appears the Defendant has been or may be denied a
right to a speedy trial because of the misconduct.
12
Neither this order nor the January 6, 2004 order was
endorsed by Camblos or Dugger, nor were the orders sent to
them. 7
On January 20, 2004, Judge Peatross received an
undated letter from the defendant, asking about the status
of his plea agreement and claiming that he had been
“assured that all the failure to appear charges would be
overlooked.” On the same day, Judge Peatross responded by
letter to the defendant and enclosed three orders
pertaining to the case along with the plea agreement.
Judge Peatross stated in the letter that the orders should
answer the defendant’s inquiries. Judge Peatross did not
provide copies of the correspondence between him and the
defendant to either Camblos or Dugger. Judge Peatross
testified at the Commission hearing that he did not do so
because he had removed both counsel from the case.
Based on this evidence, including an audio recording
of the December 15, 2003 hearing concerning the proposed
order to nolle prosequi the felony failure to appear
charge, the Commission found the evidence contradictory
concerning the in-chambers conversation between Camblos and
Judge Peatross with regard to the first plea agreement.
7
Hingeley, on behalf of the defendant, filed a second
motion to reconsider after entry of the January 7 order.
Judge Peatross denied the motion.
13
The Commission resolved the credibility issue adversely to
Judge Peatross and found that “the prosecutor did inform
the judge in chambers on December 10, 2003, that he had an
oral agreement with defense counsel to nolle prosequi the
felony [failure to appear] charge and that the judge did
inform the prosecutor that he would not accept any
agreement that purported to nolle prosequi that charge.”
The Commission thus concluded that, when Judge Peatross
executed the second plea agreement, thereby representing
that he had not participated in any discussions leading to
the agreement, he “knew, or reasonably should have known,
that such representations were untrue.”
The Commission further found that, while Judge
Peatross did not require plea agreements to be previewed by
him, he nevertheless “countenanced and encouraged” such a
practice. Continuing, the Commission found that Judge
Peatross had acted vindictively and in retaliation against
Jacques by imposing the maximum sentence on each of the
misdemeanor failure to appear charges; that, as admitted by
Judge Peatross in his answer, he did not give either
Camblos or Dugger notice that he was contemplating their
removal from the Jacques case; that, when Judge Peatross
entered the January 6, 2004 order, neither Camblos nor
Dugger had notice that he was considering a finding that
14
they had made a misrepresentation to the court; that Judge
Peatross did not afford Camblos or Dugger notice that they
were charged with professional misconduct or a meaningful
opportunity to defend themselves against such a charge, and
did not take any steps to have the January 6, 2004 and
January 7, 2004 orders delivered to the attorneys; that
Judge Peatross had no authority to make a finding of
misconduct or to remove the Commonwealth’s Attorney; that
Judge Peatross took substantive action in the Jacques case
during a time when neither party was represented by
counsel; that Judge Peatross’ decision to remove the two
attorneys and find them guilty of misconduct was in
retaliation for the motion to nolle prosequi the felony
failure to appear charge; that Judge Peatross received two
ex parte letters from the defendant and responded to one of
the letters without providing copies of the defendant’s
letters or the response to either counsel and without
notifying the Commonwealth that such ex parte
communications had occurred. 8 Based on these findings, the
Commission concluded that Judge Peatross had violated
Canons 1, 2, 2A, 3B(2), and 3B(7).
8
Judge Peatross received the second letter on December
10, 2003.
15
3. Commonwealth v. Rexrode
The Rexrode case was set for docket call on February
2, 2004. The public defender representing the defendant
had filed a motion for a continuance of the scheduled trial
date of March 3, 2004 because she had to be out of town
during the week of March 1 to care for her terminally ill
father. The public defender who was present at docket
call, James Hingeley, renewed the motion for a continuance.
Judge Peatross granted the motion and continued the trial
to March 17, 2004.
Later during docket call, as a result of further
discussions with the Commonwealth’s Attorney, Camblos,
Hingeley realized that the Rexrode case was complicated and
therefore the new trial date might not give the defendant’s
attorney sufficient time to prepare after returning to the
office. Hingeley approached Judge Peatross and moved for a
later trial date. According to Camblos and Hingeley, Judge
Peatross, in a courtroom filled with lawyers and litigants,
then asked Hingeley with irritation, sarcasm, and anger
while throwing his hands in the air to tell the court what
day he wanted. Despite his reaction, Judge Peatross
continued the trial to a later date. At the Commission
hearing, Judge Peatross admitted that he owed the public
16
defender an apology because his conduct was “wrong[,] . . .
unjustified[,] . . . unprofessional [and] uncalled for.”
Based on the evidence, an audio recording of the
February 2, 2004 docket call, and Judge Peatross’ answer
admitting the Commission’s allegations in the Rexrode
matter, the Commission found that Judge Peatross’ conduct
toward the public defender, Hingeley, was “extremely
impatient, undignified and discourteous” and that he acted
in retaliation because the public defender’s office had
filed two motions asking Judge Peatross to recuse himself
in two unrelated cases due to the judge’s conduct in
Jacques. The Commission concluded that Judge Peatross’
actions violated Canons 1, 2, 2A, and 3B(4).
B. July Notice
The July notice charged Judge Peatross with violating
Canons 1, 2, and 2A. The charges arose out of a
conversation Judge Peatross had with the Chief Justice of
the Supreme Court of Virginia.
On June 21, 2004, Judge Peatross attended a meeting of
the Judicial Council of Virginia in Richmond, of which he
was a member. After the close of the meeting, Judge
Peatross had a private conversation with the Chief Justice
in order to tender his resignation from the Judicial
Council and to explain that he was resigning due to the
17
Commission’s findings with regard to the charges brought in
the April notice. The Chief Justice immediately inquired
whether the Commission’s findings would be presented to
this Court. Judge Peatross answered that he had no
expectation or intention that the matter would come before
this Court. At that time, Judge Peatross intended to
accept the terms of an agreement proposed by the Commission
disposing of the April charges in exchange for the
Commission’s not filing a formal complaint in this Court.
During the conversation with the Chief Justice, Judge
Peatross discussed some facts surrounding the charges and
one of the terms of the proposed agreement with the
Commission. After his conversation with the Chief Justice,
Judge Peatross saw the actual written agreement and learned
for the first time about some conditions with which he
would have to comply that had not been mentioned orally by
the Commission at the close of the hearing on the April
charges. Some days later, Judge Peatross decided not to
enter into the agreement with the Commission disposing of
the April charges and relayed this decision to his attorney
on July 9, 2004.
Based on this evidence, the Commission found that
Judge Peatross misrepresented to the Chief Justice that the
matter before the Commission was concluded and would not be
18
coming before this Court, and that Judge Peatross engaged
in an ex parte conversation with the Chief Justice about an
impending case. The Commission concluded that Judge
Peatross’ actions violated Canons 1, 2A, and 3B(7).
II. CANONS
The relevant portions of the Canons at issue in this
case state the following:
Canon 1
A Judge Should Uphold the
Integrity and Independence of the
Judiciary.
Canon 2
A Judge Shall Avoid Impropriety
and the Appearance of Impropriety in
All of the Judge’s Activities.
A. A judge shall respect and comply with the
law and shall act at all times in a manner that
promotes public confidence in the integrity and
impartiality of the judiciary.
Canon 3
A Judge Shall Perform The Duties
Of Judicial Office Impartially And
Diligently.
. . . .
B.(2) A judge shall be faithful to the law
and maintain professional competence in it.
. . . .
B.(4) A judge shall be patient, dignified
and courteous to litigants, jurors, witnesses,
19
lawyers and others with whom the judge deals in
an official capacity . . . .
. . . .
B.(7) A judge shall accord to every person
who has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard according
to law. A judge shall not initiate, permit, or
consider ex parte communications, or consider
other communications made to the judge outside
the presence of the parties concerning a pending
or impending proceeding except that:
(a) Where circumstances require, ex parte
communications for scheduling, administrative
purposes or emergencies that do not deal with
substantive matters or issues on the merits are
authorized; provided:
(i) The judge reasonably believes that no
party will gain a procedural or tactical
advantage as a result of the ex parte
communication, and
(ii) The judge makes provision promptly to
notify all other parties of the substance of the
ex parte communication and allows an opportunity
to respond.
III. ANALYSIS
Upon the filing of a formal complaint by the
Commission, this Court is charged with the duty to conduct
a hearing in open court to determine whether a judge has
“engaged in misconduct while in office, or . . . has
persistently failed to perform the duties of [the] office,
or . . . has engaged in conduct prejudicial to the proper
administration of justice.” Va. Const. art. VI, § 10. We
make that determination by considering the evidence and
making factual determinations de novo. Judicial Inquiry &
20
Review Comm’n v. Lewis, 264 Va. 401, 405, 568 S.E.2d 687,
689 (2002). Contrary to the Commission’s argument, we do
not give “due weight” to the Commission’s findings or their
credibility determinations. Instead, we accord the
Commission’s findings only such weight, if any, as we deem
appropriate in each case. This is so because the
Commission’s function is only to determine whether “the
charges [are] well-founded, and sufficient to constitute
the basis for retirement, censure, or removal of a judge,”
thus resulting in a complaint being filed in this Court.
Code § 17.1-902; see also Va. Const. art. VI, § 10.
In this type of case invoking the Court’s original
jurisdiction, see Va. Const. art. VI, § 1, we independently
review the record created by the Commission and determine
whether there is clear and convincing evidence of a
violation of the Canons as charged in the complaint filed
by the Commission. See Lewis, 264 Va. at 405, 568 S.E.2d
at 689. If we find such clear and convincing evidence, we
are required to censure the judge or remove him/her from
office. Va. Const. art. VI, § 10. Those are the only
sanctions available to the Court.
The term “clear and convincing evidence” means “that
degree of proof which will produce in the mind of the trier
of facts a firm belief as to the allegations sought to be
21
established. Such measure of proof is intermediate, more
than a mere preponderance but less than is required for
proof beyond a reasonable doubt; it does not mean clear and
unequivocal.” Middleton v. Johnston, 221 Va. 797, 803, 273
S.E.2d 800, 803 (1981) (citing Fred C. Walker Agency v.
Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975));
accord Lewis, 264 Va. at 405, 568 S.E.2d at 689. The
Commission has the burden to prove by clear and convincing
evidence the charges brought to this Court. Lewis, 264 Va.
at 405, 568 S.E.2d at 689.
A. April Charges
Judge Peatross admitted many of the facts alleged in
the April notice. He conceded that, in the Mills case, he
lacked authority under Virginia law to nolle prosequi a
criminal charge except upon motion of the Commonwealth. In
the Jacques case, Judge Peatross admitted that he did not
give notice to Camblos or Dugger that he was considering
their removal from the case prior to doing so. Likewise,
he acknowledged that he sent a letter, along with three
orders, to Jacques without providing copies of the
correspondence to Camblos or Dugger. Finally, in the
Rexrode case, Judge Peatross stated that he owes Hingeley
an apology for his reaction to the second request for a
continuance of the trial date. Although Judge Peatross
22
admitted these facts, he maintains that his actions in all
three cases neither constituted judicial misconduct nor
prejudiced the proper administration of justice.
The main factual dispute concerned the in-chambers
conversation between Judge Peatross and Camblos about the
first plea agreement in Jacques. The Commission resolved
the credibility issue adversely to Judge Peatross, basing
its decision primarily on Judge Peatross’ demeanor as
gleaned from the audio recordings of the criminal
proceedings in Mills, Jacques, and Rexrode. The Commission
also cited Judge Peatross’ failure to take issue with
Camblos’ December 15, 2003 in-court representations about
what had transpired earlier in Judge Peatross’ chambers
with regard to the first plea agreement, the consistency
between Camblos’ in-court representations and his report to
Dugger concerning the conversation with Judge Peatross, and
both counsel’s preparations for the upcoming jury trial on
the felony failure to appear charge after Jacques pled
guilty to the other charges.
We have listened to the audio recordings of the three
criminal proceedings forming the basis of the April
charges. Contrary to the Commission’s findings and
argument before this Court, those recordings do not even
remotely provide clear and convincing evidence of a
23
violation of the Canons, specifically Canon 3B(4), in
either Mills or Rexrode. Judge Peatross’ demeanor, in all
three criminal proceedings, was stern, direct, and
authoritative but not “uncivil” or “extremely impatient,
undignified and discourteous,” as found by the Commission.
It is true that, during the docket call in Rexrode,
Judge Peatross exhibited some exasperation, but he had
reason to do so given Hingeley’s vacillation about the
length of the needed continuance. Also, Judge Peatross
acknowledged at the Commission hearing that, as a result of
the two recusal motions filed by the public defender’s
office, he felt that he was being falsely accused and
unfortunately took that feeling out on Hingeley. There is,
however, no evidence that Judge Peatross acted in
retaliation for the two recusal motions. Moreover, Judge
Peatross recognized that he should apologize to Hingeley
for his demeanor on that occasion.
Not only do the audio recordings fail to provide proof
of any violation of the Canons, they do not support the
Commission’s credibility findings adverse to Judge
Peatross. Based on our independent review of the record,
we find no reason to reject the testimony of Judge
Peatross, Camblos, or Dugger. Instead, we believe that
each testified honestly about his or her recollection of
24
the events surrounding the first and second plea agreements
in the Jacques case and that the differences in their
testimonies reflect an unfortunate misunderstanding between
Judge Peatross and Camblos, which was complicated by prior
disagreements between them.
Contrary to the Commission’s finding, Judge Peatross,
during the December 15, 2003 hearing, did not totally fail
to challenge Camblos’ representations about the in-chambers
conversation regarding the first plea agreement. For
example, the following colloquy demonstrates that Judge
Peatross did assert his recollection of that conversation:
THE COURT: You had brought me a plea
agreement that dealt with the robbery and the use
of the firearm.
MR. CAMBLOS: That’s right.
THE COURT: And there were other pending
charges –
MR. CAMBLOS: Right.
THE COURT: – and I asked you to take those
up –
MR. CAMBLOS: Yes.
THE COURT: – and you went back and did
that?
MR. CAMBLOS: That’s correct.
In addition, Judge Peatross explained at the Commission
hearing that he did not want to engage in “a shouting match
25
with [Camblos]” by challenging Camblos’ version of the in-
chambers conversation. Indeed, the audio recording of the
December 15, 2003 hearing reflects that Judge Peatross did
not do so.
Thus, we conclude that the evidence as to the in-
chambers discussion about the first plea agreement was in
equipoise. That conclusion means that there is not clear
and convincing evidence to prove the charge that Judge
Peatross knew or should have known that his representation
that he had not participated in discussions leading to the
second plea agreement was untrue. We reach the same result
as to the charge that Judge Peatross countenances a
practice requiring all plea agreements to be approved by
him in advance. Our holding on these charges should not be
viewed as approving any practice that involves a trial
judge in the negotiations leading to a plea agreement or
that requires parties to submit a plea agreement to a judge
for approval before tendering the agreement in open court.
See Rules 3A:8(c)(1)(C) and (c)(2). Instead, our holding
simply reflects the lack of clear and convincing evidence
in this case.
We further find Judge Peatross was not without
justification in being frustrated and perplexed about the
inconsistency between the terms of the Jacques second plea
26
agreement stating that the felony failure to appear charge
would be tried by a jury and the subsequent order, signed
by both counsel, which nolle prosequied the charge.
Camblos presented that order to Judge Peatross, along with
the letter stating that Camblos had agreed to that
disposition when the parties entered into “the plea
agreement,” one day after Jacques had entered guilty pleas
to the other charges. All this was preceded by the initial
plea agreement that did not address all the charges pending
against Jacques. Thus, we conclude that there is not clear
and convincing evidence that Judge Peatross retaliated for
the motion to nolle prosequi the felony failure to appear
charge by removing Camblos and Dugger from the case and
finding that they had engaged in misconduct. It may be
that Judge Peatross did not have sufficient grounds to
warrant his finding, especially as to Dugger. But, we
decide only whether his conduct violated the Canons, and it
did not.
We do recognize that Judge Peatross, as he admitted,
removed Camblos and Dugger from the Jacques case without
any notice to them that he was considering such action. We
also find that he failed to provide them with notice that
he was contemplating a finding of misconduct and that he
did not take any steps to inform either attorney that the
27
January 6, 2004 and January 7, 2004 orders had been
entered. These omissions were, however, errors of law, not
violations of the Canons. See Oberholzer v. Comm’n on
Judicial Performance, 975 P.2d 663, 680 (Cal. 1999)
(finding that “[m]ere legal error, without more, . . . is
insufficient to support a finding that a judge has violated
the Code of Judicial Ethics”); see also Harrod v. Illinois
Courts Comm’n, 372 N.E.2d 53, 65 (Ill. 1977) (“to maintain
an independent judiciary mere errors of law . . . should
not be the subject of discipline”).
We also note that both attorneys had the opportunity
to explain their positions and answer Judge Peatross’
questions at the December 15, 2003 hearing. They also both
filed motions to reconsider before Judge Peatross actually
entered the January 6, 2004 and January 7, 2004 orders, and
Hingeley filed another motion to reconsider after entry of
the January 7, 2004 order. Moreover, Judge Peatross, like
any judge in Virginia, has the inherent right to supervise
the conduct of attorneys practicing before him and to
discipline an attorney who engages in misconduct, which
includes the right to remove an attorney of record in a
case. Richmond Ass’n of Credit Men, Inc. v. The Bar Ass’n
of Richmond, 167 Va. 327, 335, 189 S.E.2d 153, 157 (1937);
Norfolk & Portsmouth Bar Ass’n v. Drewry, 161 Va. 833, 836,
28
172 S.E. 282, 283 (1934); Legal Club of Lynchburg v. Light,
137 Va. 249, 250, 119 S.E.2d 55, 55 (1923).
Judge Peatross also made errors of law in certain
other respects. In Jacques, he should not have dismissed
the felony failure to appear charge and responded to the
defendant’s ex parte letter at a time when neither the
defendant nor the Commonwealth had an attorney of record in
the case. He should have rectified that situation and
provided proper notice before dismissing the case and
answering the defendant’s letter. He did, however, have
both of Jacques’ unsolicited letters placed in the
defendant’s court file, which was available to the
Commonwealth’s Attorney and the defendant’s attorney. In
Mills, Judge Peatross erred when he, sua sponte, entered a
nolle prosequi of the felony charge. We do not condone any
of those actions; they reflect legal errors by Judge
Peatross. But, we cannot say that they rise to the level
of clear and convincing evidence of a violation of the
Canons that would warrant censure or removal from office.
See In re: Inquiry Concerning a Judge, No. 207 Elton G.
Tucker, 501 S.E.2d 67, 71 (N.C. 1998) (“judges may not be
disciplined for errors of judgment or errors of law”).
Continuing, we cannot find clear and convincing
evidence that Judge Peatross acted vindictively in
29
sentencing Jacques on the misdemeanor failure to appear
convictions. The second plea agreement clearly stated that
the sentences to be imposed for those convictions were left
to the sole discretion of Judge Peatross. The sentence on
each conviction did not exceed the statutory maximum
sentence allowed for that offense. See Code §§ 18.2-456
and 18.2-457; see also Yoder v. Commonwealth, 107 Va. 823,
832-33, 57 S.E. 581, 584 (1907) (finding a sentence of 15
days not in excess of the statute because “the limitation
of [Code § 18.2-457] does not apply to the second, third,
fourth and fifth classes into which [Code § 18.2-456] is
divided”).
The same is true with regard to the charge that Judge
Peatross had a policy that he would not try misdemeanor
charges unless they were companion cases to a felony charge
against the same defendant. It is true that Judge Peatross
believed that the general district court should not be
circumvented with regard to the trial of misdemeanor
charges and that to do so would not be an effective use of
judicial resources. But, the evidence simply fails to show
that he had established “a policy” against trying
misdemeanor charges in the circuit court.
B. July Charges
30
Like many of the underlying facts forming the basis of
the April charges, Judge Peatross did not dispute the
factual allegations in the July notice. Judge Peatross
admitted that he had a meeting with the Chief Justice in
order to submit his resignation from the Judicial Council.
During that meeting, he assured the Chief Justice that the
matter pending before the Commission would not be coming
before this Court and proceeded to discuss some of the
facts surrounding the charges and one of the terms of the
proposed agreement disposing of the April charges. The
Commission, however, again chose to discredit Judge
Peatross’ testimony that, when he spoke with the Chief
Justice, he fully intended to accept the Commission’s
proposed disposition of the April charges. The Commission
thus found that Judge Peatross had “misrepresented to the
Chief Justice that the matter before the Commission had
been concluded in a manner so that it would not be coming
before [this Court].”
Yet again, the record does not contain clear and
convincing evidence to prove this charge. It is undisputed
that Judge Peatross did not see the written agreement
disposing of the April charges until after his meeting with
the Chief Justice. It is also undisputed that the written
version of the agreement contained conditions that were not
31
announced orally at the conclusion of the formal hearing on
the April charges. It was only after Judge Peatross saw
the written agreement that he decided not to accept its
terms. We therefore conclude that Judge Peatross spoke
truthfully when he told the Chief Justice that he had no
expectation or intention that the matter would come before
this Court. Although Judge Peatross did discuss certain
facts and details with the Chief Justice, that
conversation, at the time it occurred, was not about an
impending case. Thus, Judge Peatross did not violate
Canons 1, 2A, and 3B(7).
IV. CONCLUSION
For these reasons, we hold that there is not clear and
convincing evidence showing that Judge Peatross violated
the specified Canons as charged. We reiterate that some of
Judge Peatross’ actions in the various matters were the
result of mistaken interpretations of the law and his
authority thereunder, and some of his conduct did not
exemplify the level of professionalism that judges in this
Commonwealth should exhibit. His actions and conduct were
not, however, so egregious as to amount to judicial
misconduct or conduct that was prejudicial to the proper
32
administration of justice warranting censure or removal
from office. Therefore, we will dismiss the complaint. 9
Dismissed.
9
To the extent that we have not separately addressed
each charge, each item of evidence, or each finding of the
Commission, we have nevertheless considered all of the
record in concluding that the Commission failed to prove by
clear and convincing evidence that Judge Peatross violated
the Canons as charged. Our review included the testimony
and letters in support of and in opposition to Judge
Peatross.
In light of our disposition, it is not necessary to
rule on Judge Peatross’ motion to dismiss.
33