THE HERNANDEZ CASES courts to defer cases with dismissal terms in several statutes. However, the offense the defendant was charged with committing was not among them. According to the maxim “ expressio unius est exclusio alterius, ” the codi-fi cation of a list of eligible offenses meant that deferral-and-dismissal deals for other offenses should be considered unlawful. 4 The Court of Appeals, sitting en banc , was not willing to go that far. The full court withdrew the panel opinion without commenting on Judge Humphreys’ arguments, and remanded the case for other reasons. 5 Over the next decade, a number of cases on deferrals reached the Supreme Court, but in each one, the Court found it unnecessary to address the ultimate question of whether the inherent authority of judges included granting deferrals with a promise of dis-missal or reduction to a lesser charge. In In re Commonwealth’s Attorney , the Supreme Court avoided the simmering issue by ruling solely that a writ of mandamus could not be used to order a trial judge to reach a certain result. 6 In Gibson v. Commonwealth, 7 when the defendant failed to follow the deferral terms, the circuit judge convicted him. The Supreme Court found that there was no order in the record containing a specifi c promise to dismiss, and regardless, the issue was not properly preserved for appellate review. 8 In Moreau v. Fuller , 9 the Supreme Court held that granting a deferral for a period of time, without a promised outcome, was within the inherent power of the court, so long as it had not made a fi nding of guilt in a written order. 10 Importantly, none of these cases in-volved a specifi c written promise by the judge to dismiss or reduce the charge at the end of the deferral period. Hernandez and its Fiery Aftertaste Then, in 2011, the Supreme Court issued its decision in Hernandez v. Commonwealth , 11 which seemed to ignite a “hell-broth” across the legal community. In Hernandez , at the conclusion of the evidence, the defense attor-ney “moved the court to defer disposition of the cases for a period of time to be fi xed by the court, to continue the defendant’s bond …, subject to such conditions as the court might prescribe, and at the end of that period to consider dismissal of the case in lieu of a conviction if the defendant complied with all the prescribed conditions.” 12 The trial court www.vsb.org held that it did not have inherent authority to do what the defense counsel requested. The Supreme Court observed that the issue of whether a case could be continued with a promise “of a particular disposition” was “not before the Court in Moreau , and it is not before us here, as neither case involved such a promise.” 13 The Court concluded that: during the interval between the conclusion of the evidence and the entry of a written order adjudicat-ing the defendant guilty, the circuit court had the inherent power, in the exercise of its discretion, to take the matter under advisement and to continue the case for future disposi-tion, subject to such lawful conditions as the court might prescribe . 14 Why did people get so excited about Hernandez ? The decision includes a discus-sion of the inherent powers of judges and may have introduced the concept to many in the media and in the legal community. The highlighted language may have been read too broadly. The Court’s use of the term “con-ditions” could be interpreted as a reference to the conditions of a defer-and-dismiss ar-rangement, seemingly endorsing the practice in a subtle way. A better reading is that the word “conditions” refers only to the court’s statutory authority to set conditions of bail. Finally, the Court remanded the case back to the circuit court “for such consideration of the defendant’s motion for deferred disposi-tion as the circuit court in its discretion may deem appropriate” 15 — possibly signaling the Court’s future approval of the practice should another case bring the issue back. Hernandez became a household word for a time, at least for lawyers and judges . Bills were introduced in the General Assembly to restrict defer-and-dismiss deals. 16 In April of 2011, leading members of the House Courts of Justice Committee announced that they would question all judges applying for re-election to the bench regarding their use of defer-and-dismiss arrangements. 17 Thus, Hernandez gave rise to years of disagree-ment, argument, publicity, and threats of corrective legislation, even though its hold-ing was quite narrow. The Court of Appeals Adds a Strong Potion The Court of Appeals, in contrast, has con-fronted the ultimate issue in three published CRIMINAL LAW SECTION | Vol. 68 | August 2019 | VIRGINIA LAWYER 29