Please ensure Javascript is enabled for purposes of website accessibility

Judge balks at prosecutor’s marijuana policy

Peter Vieth//July 27, 2020

Judge balks at prosecutor’s marijuana policy

Peter Vieth//July 27, 2020


Arlington County is the latest battleground over the power of judges to veto a prosecutor’s decision to drop most marijuana possession charges. An Arlington County circuit judge has rejected the notion that a prosecutor has discretion to dismiss all simple possession of marijuana charges without specific explanations.

A 10-page opinion from Judge Daniel S. Fiore II reflects ongoing tension between Arlington judges and the county commonwealth’s attorney, who ran for office last year on a promise to end prosecution of simple possession of marijuana.

Commonwealth’s Attorney Parisa Dehghani-Tafti contends she has discretion to drop charges as long as she is not abusing the process to harass defendants. Arlington circuit judges have made it clear they will grant notions to nolle prosequi only for case-specific reasons.

Fiore cites the foundational precedent of Marbury v. Madison to insist that the judicial branch, alone, has the duty to interpret the law. He suggests that Dehghani-Tafti is engaged in “partisan” enforcement of the laws.

Dehghani-Tafti says the judge overlooked case law that gives the executive branch the discretion to determine when a prosecution should be terminated.

Fiore’s July 10 opinion is Commonwealth v. Kelly (VLW 020-8-071). Despite his full throated defense of judicial oversight of dismissal motions, Fiore found reason to allow the nolle prosequi of the charge at issue.

Courthouse clash

The case of Eric D. Kelley Jr. (as his name is spelled in court records) arises from a traffic stop. An officer reported he smelled fresh marijuana. On inquiry, Kelley produced the marijuana and explained he had a valid Maryland medical marijuana card, according to the parties’ briefs. He was charged, nonetheless.

When Dehghani-Tafti moved to nolle pros the misdemeanor possession charge, Chief Judge William T. Newman asked for an explanation. A statute – Va. Code § 19.2-265.3 – requires a “good cause” showing for a court to exercise its discretion to enter nolle prosequi.

The prosecutor’s office filed an 18-page brief contending that a Virginia prosecutor has nearly unfettered discretion to dismiss criminal charges so long as the motion does not evince an intent to harass defendants.

Dehghani-Tafti set out four bases for not enforcing the law against simple pot possession: (1) It is not an efficient use of resources, (2) the limitations of forensic tests hamper prosecution, (3) there’s little public safety risk and (4) the legislature was considering decriminalization.

The judges responded with a March 4 order requiring a case-specific written explanation for any motion to dismiss or reduce criminal charges. Such motions should “provide in detail all factual and not purely conclusory bases in support thereof,” the order said.

The public defender then filed a 28-page brief arguing that a prosecutor’s good faith decision to dismiss charges is not subject to judicial review, regardless of whether the judge disagrees with the policy behind the decision.

Separation of powers

Fiore’s opinion is a rebuttal.

“Once a prosecution is initiated and placed under the Court’s jurisdiction, it is the Court, not the Commonwealth’s Attorney, that must determine whether the pending charge should be dismissed,” Fiore wrote.

Citing West’s Encyclopedia of American Law and Black’s Law Dictionary, the judge interpreted the term “good cause” as “substantial grounds for the relief requested, as determined on a case-by-case basis, upon the record then established.”

Fiore noted the Supreme Court of Virginia refused to order Norfolk judges to dismiss a marijuana possession charge on the motion of Commonwealth’s Attorney Greg Underwood, rejecting Underwood’s claim that the judge’s refusal violated the separation of powers doctrine.

Fiore said it was Dehghani-Tafti who would invade the legislative realm with her blanket refusal to prosecute pot possession.

“A public policy basis for a nolle prosequi request of a court by the executive branch is nothing less than a fundamental disagreement with the criminalization of marijuana, thus, it invades the determination by the legislative branch,” Fiore wrote.

“Here, the Court finds that the decision by the executive branch to effectively nullify a statute passed by members of the Virginia General Assembly, who were duly elected by the citizens, fails to constitute good cause. A court should not do that which is impermissible under the law,” Fiore said, again citing Marbury.

“By its very nature, the decision that a law passed by the Virginia Legislature never should have been passed, and therefore should not be enforced because it achieves nothing … is anathema to the founding principles of the Virginia Constitution. Furthermore, the Court should not adopt a legal stance based upon partisan policy concerns because avoiding external partisan influence is central to judicial independence, integrity, and impartiality,” Fiore wrote.

Notwithstanding his defense of judicial oversight in nolle pros motions, Fiore granted the motion to dismiss the charge against Kelley. He accepted the prosecution’s contention that there were difficulties with the lab test results.


Dehghani-Tafti said Fiore ignored decisions from the Court of Appeals of Virginia that bolster the discretion of prosecutors.

“It seems unprecedented to go all the way back to Marbury v. Madison on such a routine motion when there is binding Court of Appeals case law that was left unaddressed,” Dehghani-Tafti said.

Public Defender Bradley R. Haywood also disagreed with Fiore’s ruling.

“There is clear, binding precedent on this issue, in which ‘good cause’ is defined as the absence of bad faith. In other words, the good cause requirement exists to protect defendants from prosecutorial misconduct,” Haywood said.

He also disagreed with Fiore’s extended condemnation of “partisan” enforcement of the law.

“Weighing enforcement priorities is a core function of the executive branch, and a big part of a chief prosecutor’s job. Making decisions in accordance with the weight assigned to priorities it identifies also happens to be the essence of public policy,” Haywood said.

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests