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Constitutional crisis in Virginia

Recently, a decision by a circuit court judge in Loudoun County to remove the commonwealth’s attorney from a case has brought to the forefront of media attention a constitutional controversy that has been smoldering in Virginia for some time. The public saw it emerge in recent years where some prosecutors refused to prosecute marijuana charges in the days just before its legalization, and some judges refused to enter requested motions to dismiss charges.

Recently in Loudoun, Judge James Plowman, relying on an assertion of inherent authority, rejected a proposed plea agreement and removed the commonwealth’s attorney from further consideration of a case. In part, the judge’s ruling asserted that the “Commonwealth has entered into plea negotiations and entered into a plea agreement absent a full review of the facts, and without exercising due diligence in the performance of her duties in preparing her case.”

I believe this ruling creates a constitutional controversy in Loudoun, with ramifications throughout the commonwealth, as it asserts that prosecutorial discretion is subject to judicial review. I find no authority for such review.

Article I, § 5 and Article III, §1 of the Virginia Constitution recognize the separation of powers. Va. Code §15.2-1627 recognizes the discretion of the commonwealth’s attorney to prosecute cases. In a series of cases, the Supreme Court of Virginia has determined that a trial court errs and impermissibly assumes an executive function when it fails to recognize the absolute right of a commonwealth’s attorney to exercise its prosecutorial discretion. “It is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney.” (See, Barrett v. Commonwealth, 268 Va. 170, 178 (2004).)

In addition, “the institution of criminal charges, as well as their order and timing, are matters of prosecutorial discretion.” (See, Bradshaw v. Commonwealth, 228 Va. 484, 492 (1984).) “A prosecutor has the discretion to decide under which of several applicable statutes the charges shall be instituted.” (See, Hensley v. City of Norfolk, 216 Va. 369, 373 (1975); In re Horan, 271 Va. 258, 264 (2006).)

Under Virginia law and precedent, the commonwealth’s attorney has an unfettered right to negotiate and settle criminal charges in Loudoun County. Inherent in that right is the inability of the judiciary to substantively review the exercise of that executive function.

The judge’s order impermissively evaluates the sufficiency of the prosecutor’s efforts and its basis for its decisions to negotiate a plea. This action rests on a slippery slope and suggests that the commonwealth’s attorney must identify all the factors considered by it in the exercise of its discretion. I can find no authority for a circuit court judge to declare he is in a position to “approve” of those plea contracts.

Rule 3A:8(b) specifically requires that “a circuit court cannot accept a plea of guilty without first determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea.” The rule is read in conjunction with Va. Code §19.2-254, which only permits a court to refuse to accept a plea of guilty to a lesser offense than that included in the original charge. No authority is given to evaluate the substance or basis of the plea or the prosecutor’s basis for the agreement.

The purpose of judicial review of a plea is not to ensure that a person is punished or convicted to the extent a judge wishes him to be; the purpose is to ensure that the defendant is providing a knowing, intelligent and voluntary plea. Judicial review is not to review the terms of the settlement, but to ensure that the defendant’s due process rights are protected. No authority authorizes the evaluation of the underlying discretionary decision to prosecute, not prosecute, or settle a case through plea negotiation.

The Loudoun court also justified its action based on a determination that the commonwealth’s attorney did not fully disclose all the underlying facts surrounding the case, concluding that this constituted “overt misrepresentation by omission.” Again, I can find no authority supporting the proposition that a prosecutor is required to open its files and provide all facts considered by the prosecutor in exercise of its discretion. This violates the separation of powers and the concept of discretion.

Finally, the Loudoun court asserts that it removed and disqualified the prosecutor based on its “inherent authority.”  Even considering the precedent referenced by the judge, it appears that the judge has improperly invaded an executive function. A court has an inherent authority to discipline attorneys and regulate their conduct in proceedings before that court. This is a constitutional power derived from the separation of powers between the judiciary, as an independent branch of government, and the other branches. (See, Va. Const. Art. III, § 1; Art. VI, § 1. In re Moseley, 273 Va. 688, 690 (2007).)

However, this inherent authority relates to the discipline of individual attorneys, and does not create an inherent right to disqualify an entire prosecutor’s office.

Appellate courts have only recognized a limited authority to disqualify an entire prosecutor’s office — the case of actual or imputed conflict of interest. “In order to protect prosecutorial impartiality, a trial court has the power to disqualify a Commonwealth’s attorney from proceeding with a particular criminal prosecution if the trial court determines that the Commonwealth’s attorney has an interest pertinent to a defendant’s case that may conflict with the Commonwealth’s attorney’s official duties.” (See, Lux v. Commonwealth, 24 Va. App. 561, 568 (1997).) In this case, the judge’s order does not make any finding of a conflict of interest that would justify a disqualification of the entire commonwealth attorney’s office.

Although the judge is presumed to be well-intentioned, sharing a desire of all citizens for proper resolution of cases, the invasion of the prosecutor’s executive function cannot be justified. Prosecutors do not serve at the pleasure of the judiciary; nor is their discretion subject to substantive review outside the context of ensuring the voluntariness of a defendant’s plea and the absence of a conflict of interest.

This is not an issue of progressive versus conservative.  It is one of ensuring that the Constitution is upheld and not compromised. I am not always a fan of the unfettered prosecutorial function. As noted by the U.S. Supreme Court, “There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for individual and institutional abuse.” (See, Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).)

However, I have to accept and recognize the separation of powers and the discretion of prosecutors to bring cases, not bring cases and to resolve cases. If this constitutional separation of powers is not maintained, the judiciary merely becomes a super prosecutor, instead of a neutral, detached decision-maker.

Thomas K. Plofchan Jr. is a managing member of Westlake Legal Group in Sterling, Virginia. He has been practicing criminal defense since 1992.