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Supreme Court kicks prosecutor discretion case

The Supreme Court of Virginia has refused to consider whether Arlington County circuit judges improperly curbed prosecutors’ discretion to drop criminal charges.

The decision arose from the tension in some Virginia courts between progressive prosecutors determined not to pursue minor marijuana charges and judges who believe prosecutors lack the authority to disregard certain criminal laws.

Legislation passed in the General Assembly’s 2020 special session may have ended that tension by clearly giving prosecutors the authority to dismiss cases on whatever terms they wish except in cases of bribery or bias.

The justices on Dec. 18 dismissed a prosecutor’s petition asking the high court to bar enforcement of a general court order in Arlington Circuit Court setting conditions for prosecutors’ reducing or dropping criminal charges. In an unpublished order, the court said the petition failed for lack of a specific case or controversy in dispute.

The court’s order is In Re: Parisa Dehghani-Tafti (VLW 020-6-081).

Battle in Arlington

Judges in Arlington  County took a hard stand against the determination of Commonwealth’s Attorney Parisa Dehghani-Tafti not to prosecute minor marijuana charges. Although she ran for office in 2019 on a promise not to pursue misdemeanor pot possession convictions, the judges of the 17th Judicial Circuit insisted they would have the final say on whether any such charges would be tossed.

In a March 4 blanket order signed by all four judges, the court said it would require a written, case-specific explanation for any motion to reduce or dismiss criminal charges.

The order came after Dehghani-Tafti’s office crossed swords with Chief Judge William T. Newman in a misdemeanor marijuana possession case. The prosecutor sought to nolle pross the charge. Newman ordered a written motion setting out “good cause,” as required in Va. Code § 19.2-265.3.

Dehghani-Tafti and the public defender’s office both protested that the court was invading the discretionary authority of the prosecutor.

In July, Judge Daniel S. Fiore II used the case to articulate a rebuttal to that view, largely founded on the law of nolle prosequi and the statute that gives judges the discretion to reject nolle pross motions for lack of “good cause shown.”

Change coming in July

The legislative fix in House Bill 5062, introduced by Del. Michael P. Mullin, D-Newport News, ignores the law of nolle prosequi and gives the prosecutor almost unfettered discretion to use a motion to dismiss:

“Upon motion of the Commonwealth to dismiss a charge, whether with or without prejudice, and with the consent of the defendant, a court shall grant the motion unless the court finds by clear and convincing evidence that the motion was made as the result of (i) bribery or (ii) bias or prejudice toward a victim as defined in § 19.2-11.01 because of the race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin of the victim.”

Because dismissal can be with or without prejudice, Mullin reasoned there was no need to wade into the muddy waters of nolle prosequi, which applies only to dismissals without prejudice.

“My bill says you can do that, you just have to do it with a dismissal,” Mullin said Dec. 30. The amended law takes effect July 1.

‘Case or controversy’ lacking

Dehghani-Tafti’s petition to the high court sought a writ of prohibition barring the Arlington judges from enforcing the blanket order setting conditions for dismissal. The Supreme Court concluded the remedy of prohibition – to keep courts’ exercise of authority within the limits prescribed by law – did not apply to the case.

“The analysis required to determine if prohibition is an appropriate remedy necessarily presupposes the existence of a case or controversy before the inferior court. A case or controversy is necessary to analyze whether the inferior court had ‘subject matter of the controversy, jurisdiction of the parties, and the amount in dispute,’” the court said.

“Petitioner has not identified a specific matter in which the circuit court has exceeded its jurisdictional boundaries, and, therefore, prohibition does not lie.”

The court “left the door open” for another appeal based on a specific case, Dehghani-Tafti told The Washington Post.

Drug case pending

One case still pending involves an alleged “drug mule” caught with large quantities of marijuana and hashish oil at Reagan National Airport in 2018. Lawyers worked out a plea deal, but Fiore rejected the deal. He then wrote a Sept. 8 opinion highlighting what he saw as an effort by the parties to minimize the quantity of illicit substances involved.

A March 2 jury trial is scheduled.

The underlying issue – the wisdom of criminalizing possession of small amounts of marijuana – could be addressed by the 2021 legislature. Gov. Ralph Northam has called for full legalization of marijuana.