A Fairfax County circuit judge has ruled that criminal charges must be dismissed if the commonwealth’s attorney’s office declines to prosecute.

The ruling arises from the decision by Fairfax Commonwealth’s Attorney Steve Descano not to prosecute many misdemeanor cases, often leaving the police officer and the judge to handle presentation of the state’s evidence.

It’s a common practice around the state. Overworked prosecutors’ offices elect not to prosecute certain misdemeanors and traffic offenses, leaving police officers and judges to work out a sometimes-awkward routine of bringing out the expected testimony.

Circuit Judge Richard E. Gardiner ruled March 29 that the absence of a prosecutor means there can be no court proceeding, at least in circuit court.

Gardiner’s decision is not binding on other courts, or even on other judges in the Fairfax court. But the lawyer who won dismissal of an interlock violation charge hopes Gardiner’s opinion will change practices.

The opinion is Commonwealth v. Sangha (VLW 021-8-049).

Interlock violation

Harwinder Sangha was charged with driving without an ignition interlock system, a common requirement for those convicted of DUI. Descano’s office determined not to prosecute the charge.

Sangha’s legal team filed a motion to dismiss based on the election not to prosecute, but a general district judge held a trial regardless and convicted Sangha. The judge asked the police officer to “Tell me what happened,” according to defense attorney Danielle S. Brown.

The sentence was steep. Sangha was given six months to serve and fined $1,500. When he appealed to circuit court, Gardiner invited various groups to file amicus briefs on whether the court could properly conduct a trial and what roles the police officer and judge should take.

Prosecutor’s discretion

Having heard the arguments of Sangha’s lawyers and reviewed six outside briefs, Gardiner said he was compelled to dismiss the charge against Sangha.

Gardiner first determined that the commonwealth’s attorney may elect not to prosecute the charge, a Class 1 misdemeanor. A statute allows discretion as to prosecution of Class 1, 2 and 3 misdemeanors. Gardiner found no statutory authority for the court to request the commonwealth’s attorney to appear in an interlock violation case.

Gardiner then determined that neither a law enforcement officer nor a crime victim may assume the prosecutor’s duties and concluded the court could not adjudicate the case.

He endorsed prosecutorial discretion as an “inherent executive power” that could only be understood to mean that “a court cannot second guess a prosecutor with respect to the prosecutor’s decisions on which cases to prosecute.”

Court’s limited role

The court’s role under the Virginia Constitution does not extend to filling in for a commonwealth’s attorney that has affirmatively decided not to prosecute, the judge said.

“Because a circuit court cannot exercise executive power, a court trying a criminal case can do none of the things that a Commonwealth Attorney is authorized to do,” Gardiner wrote. “Indeed, the very fact of the occurrence of a trial without a Commonwealth Attorney means that the court has stepped into the executive’s role in determining which cases should go forward because the court’s role is limited to providing a forum where disputing parties may have their disputes resolved, not to determine which cases should go forward.”

Gardiner said the court has no authority to call witnesses and only limited authority to examine witnesses called by the parties. Even asking if anyone in the courtroom would like to tell the court anything would overstep the court’s constitutional and statutory bounds, he decided.

Brady concerns

Another reason for dismissal is the defendant’s rights under Brady and related rulings, Gardiner said. Without a prosecutor, “the defendant has no meaningful mechanism to obtain exculpatory information,” the judge said.

The point was argued by the Fairfax Office of the Public Defender in its amicus brief.

Gardiner acknowledged the burden his ruling may cause.

“While the court is reluctant to dismiss the charge against Defendant because it would be better if what appears to be a legitimate charge was resolved on the merits and because the court is keenly aware of the consequences of its conclusion, nonetheless the court is bound by the law and cannot jump into the breach created by the absence of the Commonwealth Attorney and take on the role of the executive, even to a small degree,” Gardiner wrote.

Anticipating more resources at his disposal, Descano – the commonwealth’s attorney – said the effect of Gardiner’s ruling will be “minimal.”

“I welcome this opinion because it reflects the view for which I have long advocated: that the system functions best when the Office of the Commonwealth’s Attorney has the capacity to directly handle, and bring its reform-minded approach to, as many cases as possible,” Descano said in a prepared statement.

“I am pleased that, in the three months since we briefed this case, county leaders have signaled their agreement by planning for the growth of this office – as evidenced in the FY ’22 advertised budget. In anticipation of having capacity to ethically involve ourselves in more cases, we have already begun to appear in an increasing number of the types of cases referenced by Judge Gardiner,” Descano continued.

“As this opinion is narrow and touches only on matters in Circuit Court that are already within the scope of our operational ramp-up, its immediate effect will be minimal,” Descano said.

Brown – Sangha’s defense lawyer – hoped the opinion changes prosecutors’ practice throughout Virginia.

“We’re hoping that, while this is not binding, it will be considered persuasive both in Fairfax County Circuit court and all over the state,” Brown said.

Descano’s plans should be welcome news for the Fairfax County Police Association, which reported its members have struggled to identify their roles and trial expectations in the absence of a prosecutor in the courtroom.

Attorney Jennifer L. Leffler, who wrote the FCPA’s brief, said the association hoped the ruling will bring a change to the policy on misdemeanor prosecutions.

Also urging an end to police officer prosecutions were the ACLU of Virginia and the Virginia Association of Criminal Defense Lawyers.

-Peter Vieth, Virginia Lawyers Weekly