Testing the waters: Defense lawyers challenge no-prosecutor trials

By: Peter Vieth October 25, 2021

A favorable ruling from a Fairfax County judge earlier this year encouraged Virginia criminal defense attorneys to challenge the common practice of trying misdemeanor cases without a prosecutor taking part.

A similar bid to block a no-prosecutor trial was rebuffed by a Newport News judge last month, but there may still be more attempts to dismiss charges where a police officer and not a prosecutor would conduct the presentation of the government’s evidence.

The Newport News judge said barring no-prosecutor trials would disrupt a “long standing and practical tradition” in Virginia courts.

Defense lawyers are testing the waters, according to the president of the Virginia Association of Criminal Defense Lawyers. It was not clear whether a legislative change would be proposed.

While added staff means no-prosecutor cases are now rare in Fairfax County, where the issue initially arose, the routine practice of non-commonwealth trials for traffic and misdemeanor cases continues in many Virginia courts.

Fairfax challenge

Traffic court regulars know the drill. The clerk calls the case, the police officer and the defendant step up, and the judge signals for the officer to relate what happened. No prosecutor is present. The judge may ask questions of both the officer and the accused offender before ruling on the case.

“I think most jurisdictions allow misdemeanor cases to go forward without a prosecutor,” said Brad Haywood, Executive Director of Justice Forward Virginia. “They pretty much just let the police officer do it.”

When a criminal charge carries the prospect of jail time, the situation becomes more serious.

In the Fairfax County case, defendant Harwinder Sangha appealed a general district court judgment that included a six-month sentence for driving without a court-ordered ignition interlock device.

Sangha’s lawyer argued the case could not go forward without a prosecutor. Fairfax Circuit Judge Richard E. Gardiner agreed, reasoning that he would exceed his judicial role by taking on the executive duties of presenting evidence. There were Brady concerns as well, because a defendant has “no meaningful mechanism” to get exculpatory information, Gardiner wrote.

Gardiner’s March 29 decision is Commonwealth v. Sangha (VLW 021-8-049).

Newport News challenge

Defense lawyers now are using Gardiner’s opinion to oppose trials without a prosecutor in the courtroom.

“It is VACDL’s opinion that Judge Gardiner’s opinion is an accurate statement of law,” said VACDL president H. Eugene Oliver III of Harrisonburg.

“Of particular concern to us is the Brady implications and the fact that, however good their intentions may be, law enforcement cannot step into the impartial role of the prosecutor and it is a violation of due process for the courts to permit them to take that role,” Oliver said.

In Newport News, attorney Earl J. Wheeler of Yorktown raised those arguments on behalf of a client facing a “non-commonwealth” trial. Defendant Norman Wilkerson was charged with carrying a concealed weapon, a Class 1 misdemeanor.

Wheeler asked Circuit Judge Gary A. Mills to dismiss the charge for failure to prosecute.

Mills acknowledged Gardiner’s analysis on the “complex legal issues” involved, but he said any encroachments on separation of powers and Brady obligations were minimal.

“The Court finds that in the absence of the Commonwealth’s Attorney, law enforcement merely conducts the orderly presentation of witnesses without electing to assume the separate role of the Commonwealth’s Attorney,” Mills wrote.

“As a result, the Court finds that it may exercise a limited degree of executive power, the questioning and calling of witnesses … notably without de facto violating Brady v. Maryland, as the Court may intervene by questioning to root out exculpatory evidence to facilitate a fair trial,” the judge continued.

Mills found clear language in the code and the rules allowing adjudication of non-commonwealth cases. Ending the practice would create “disastrous public policy considerations,” the judge said. Having a prosecutor present for every misdemeanor would be “an almost impossible endeavor,” he wrote.

Mills’ Sept. 1 opinion (designated as an order) is Commonwealth v. Wilkerson (VLW 021-8-112).

Concerns persist

There will be similar challenges by defense attorneys. “I can almost guarantee it,” Wheeler said. “I think Judge Mills, in this case, was in error.”

A VACDL brief submitted in the Fairfax case argued that a complaining witness, whether a civilian or the charging officer, cannot prosecute a criminal case because it would violate a defendant’s right to due process.

“The focus on an ‘orderly presentation of witnesses’ is not sufficient to overcome the due process issues because there is no requirement that exculpatory information be revealed, and it should not be the role of the courts to try to root out such evidence,” Oliver wrote in an email. “I have serious doubts about the efficacy of such questioning by the court. And that’s even without getting into the more nuts-and-bolts issues of cross-examination and evidentiary objections.”

Wheeler said he understands the pressure on commonwealth’s attorneys, who often lack the resources to handle all misdemeanor cases.

But, he said, “they have an alternative. If the commonwealth elects not to prosecute, then those matters get dropped.”

Oliver said defense attorneys may not always want to challenge a no-prosecutor situation.

“It is not always a disadvantage for defendants, since sometimes officers can forget to present all the information required for a conviction. I’ve won such cases before. The concern is when judges step in to fill the prosecutor’s role or when there may be exculpatory information that is unlikely to be provided absent the prosecutor’s ethical obligation,” Oliver explained.

Court challenges may also meet with skepticism, given the long-standing and widespread practice of no-prosecutor trials for minor cases.

“I have the sense that Gardiner is an outlier on the issue,” Haywood said.

But defense lawyers are paying attention.

“We are following the issue,” Oliver said. “I am not aware of any proposed legislative fixes at this point, but I would anticipate that this may very well be something that would get addressed.”

Any “fix” would likely depend on the outcome of the Nov. 2 election, he said.

Prosecutors not united

Prosecutors do not speak with one voice on the issue. Fairfax County Commonwealth’s Attorney Steve Descano said in March that he welcomed Gardiner’s opinion as it reflected his view that the system works best when a prosecutor can bring a “reform-minded approach” to as many cases as possible.

The Virginia Association of Commonwealth’s Attorneys took no position.

“This isn’t a matter for VACA to address as an association given the misdemeanor charges a commonwealth’s attorney chooses to prosecute is an independent decision based on the jurisdiction’s needs and office’s operation,” VACA administrator Amanda Howie said Oct. 19.

Neither Descano nor an official with the Newport News commonwealth’s attorney’s office were available for comment on the Wilkerson decision.