Judge's departure complicates things for Fluvanna, Culpeper benches

The Culpeper Bar Association may have formally endorsed the city’s assistant commonwealth’s attorney, Dale Durrer, for the vacant judgeship in the 16^th Judicial District Thursday night, but some experts say the position could remain vacant for weeks or even longer.

Circuit Court Judge John G. “Jack” Berry, who sat primarily in Fluvanna and Culpeper counties, decided to step down from the bench last month in order to join the law firm of Allen, Allen, Allen & Allen as a partner. He left the judgeship Jan. 31 and started his new position Feb. 1.

The Culpeper Bar Association made the unanimous decision Thursday night to endorse Durrer, who began his law career as an associate attorney at law firm of Davies, Barrell, Will, Lewellyn & Edwards in Culpeper after graduating from American University's Washington College of Law in 2000.

“Dale is an excellent candidate. He’s prosecuted several high profile cases,” Culpeper Bar Association president Clarissa T. Berry said, adding that Durrer has led counsel on murder trials in Greene and Culpeper counties.

Durrer has practiced law in Culpeper for 12 years, she said, adding that he served as assistant commonwealth’s attorney for nine of those years.

“Culpeper is really overdue for a local judge,” Berry said, adding that no local judge has sat on the bench since the 1940s or 1950s.

“It’s important to me that Culpeper have a voice on the bench,” Durrer said. “It’s important that a local judge sit here who has explicit ties to the area, who understands and appreciates the people who will come before him or her.”

Still, Durrer is only one potential candidate for the Judge Berry’s empty seat.

“It’s not like we’re prepared to fill the vacancy the day Judge Berry steps down,” State Sen. R. Creigh Deeds, D-Bath County, said. Deeds is also a member of the Senate Courts of Justice Committee. “It’s not one of those things that’s going to happen overnight,” he said.

Judicial vacancies are filled by the General Assembly, he explained. Deeds estimated that the General Assembly may be able to hire a replacement by late February.

Edward Macon, a spokesperson for the Supreme Court of Virginia, said that he expects the position to be filled in the next month or two.

The Virginia General Assembly appointed Berry to the circuit court bench in August 2008. He became chief judge in November 2010. Though circuit court judges are appointed for eight-year terms, Berry decided to step down after just three years.

“In my experience, which is limited, I don’t think it’s very common,” Macon said of Berry’s decision to return to the public sector.

“Culpeper in particular is going to have a real mess on their hands,” J. Lloyd Snook, president-elect of the Charlottesville Albemarle Bar Association, said. According to Snook, Culpeper has one of the fastest growing caseloads in the area. Fluvanna Circuit Court, which hears cases two days a week, will also be in a pinch, he said.

“For the next month, the clerk over in Fluvanna is going to spend all his time on the phone trying to find judges to come work,” Snook said.

A total of 580 cases were concluded in Culpeper and 301 in Fluvanna in 2010, according to the Circuit Courts of Virginia caseload report.

Substitute judges are generally retired or judges from another jurisdiction that travel to another court for a short period of time to hear cases. This causes problems when it comes time to scheduling cases, Snook said.

“It won’t be Judge Berry, but it will be someone just as knowledgeable and just as able to handle their cases,” Macon said of substitute judges. He said that retired judges are paid $200 per day, and have their travel expenses paid for by the court’s budget.

Albemarle Circuit Court Judge Cheryl Higgins has agreed to travel to Fluvanna one day a week until a new judge is found, Snook said. Still, cases are being scheduled as far in advance as May, which Snook said is very unusual.

Each court has different set dates for the grand jury to meet. These dates are not easily changed, Snook said, making it difficult for a travelling judge to hear outside cases and attend to required matters in his own court.

Though a substitute judge can attend grand jury hearings, Snook said, “You like to have the judge that’s going to be in charge of the docket be the guy that sets the cases.”

Moreover, when using substitute judges, it’s often impossible to know who will be hearing a case until a week or ten days before trial time.

Defense attorneys encourage their clients to seek a judge trial or a jury trial based on their past experience with a judge, or the judge’s reputation, Snook said. A good defense attorney would not encourage his client to seek a judge trial with a judge who generally gives heavy sentences, for example.

“If we don’t know who the judge is likely to be we’re much more likely to ask for a jury trial,” Snook said. “The jury is going to be the same either way, but the judge could be will be wildly different.”

The certainty of knowing which judge will hear a case can impact the court’s efficiency, Snook said.

“If we don’t know who the judge is likely to be were much more likely to ask for a jury trial,” he said. Jury trials can be time-consuming, and often requires the use of a substitute judge to manage the rest of the court’s caseload, Snook said. This brings more substitute judges into the circuit, and thus gives attorneys even less certainty as to who will hear their cases.

The General Assembly is expected to discuss this and other judicial vacancies around the commonwealth in the coming weeks.