The Hernandez Cases: Finding Clarity in a Bubbling Cauldron by the Hon. Gordon S. Vincent For a charm of powerful trouble, Like a hell-broth boil and bubble. Double, double toil and trouble; Fire burn and caldron bubble. William Shakespeare, Macbeth, Act IV, Scene 1 For more than a decade , few legal issues have generated more discussion and argument among criminal lawyers and trial judges than whether courts have inherent authority to defer a criminal case and ultimately dismiss or signifi cantly reduce the charge. Both the Supreme Court of Virginia and the Court of Appeals have issued multiple opinions on the issue, joined recently by the Attorney General. As the appellate opinions were issued, each one seemed to add another in-gredient to a dark broth of confusion, reminiscent of the witches’ brew in Macbeth . When the cases are read to-gether, however, the bubbling potion has more clarity that you might see at fi rst. 28 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION The Code of Virginia allows courts to defer a fi nding of guilt and allow defendants to com-plete a rehabilitation program, or otherwise avoid a conviction, for several offenses. 1 For many years, a defense lawyer could ask a pros-ecutor or judge for a deferral with a promise of eventual dismissal for other offenses as well. The deal would typically include a guilty plea coupled with payment of court costs and restitution to the victim, community service, no more trouble between the parties, and the usual general good behavior terms. This article examines the recent development of the common law on the inherent authority of Virginia’s courts to allow these arrangements for offenses beyond those eligible under the Code. The First Ingredients The earliest challenge to the practice from an appellate court 2 came in a Court of Appeals decision in 2000, authored by Judge Robert Humphreys. In Powell v. Commonwealth, 3 Judge Humphreys, writing for a three-judge panel, observed that the Code authorized www.vsb.org Shutterstock.com