Courtesy of wallpaper.com
by James C. Sherlock
I posed two questions in my last article.
- Can a Commonwealth’s Attorney (CA) decide to decline prosecution of an entire class of misdemeanors?
- If so, are there any constraints available in the law?
By law and precedent the answer to both questions is yes.
- A CA has discretion in prosecuting misdemeanors.
- A Circuit Court can require her to explain herself to the court as to how that discretion is used in each case. That makes ignoring entire classes of misdemeanors very difficult.
I am not an attorney. I welcome the comments of attorneys whose practices intersect this matter, especially in Fairfax.
Discretion of the Commonwealth’s Attorney. The Commonwealth’s Attorney has the discretion to decline to bring charges in misdemeanor cases…
§ 15.2-1627. (Effective January 1, 2022) Duties of attorneys for the Commonwealth and their assistants gives him or her that right.
The follow-up question is whether a Commonwealth’s Attorney may decline to prosecute entire sections of the Virginia Criminal Code, or is he or she subject to a legal check on that power? The Circuit Courts have a say in that.
Discretion of the Court. § 19.2-265.3. Nolle prosequi; discretion of court upon good cause shown.
Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown. [Bolding added]
An Arlington Case on conflict between the two discretions. In 2019, Arlington elected a Commonwealth’s Attorney, Parisa Dehghani-Tafti.
In 2019, Arlington and Falls Church voters elected Parisa Dehghani-Tafti, a prosecutor committed to reforming the criminal justice system, reducing incarceration, and ending wasteful prosecutions.
On March 4, 2020, the judges of the 17th Judicial Circuit in Arlington/Fairfax ordered
…all CA motions to:
- amend an indictment pretrial,
- enter a nolle prosequi or
- dismiss a case
shall be in writing; said motion shall provide in detail all factual and not purely conclusory bases in support thereof.
The order required that each motion be signed by counsel “to the best of counsel’s belief after reasonable inquiry and warranted by existing law.”
The order further required that “for continuity of established practices and consistent with 17th Cir. R[ules of] P[rocedure],” all sentencing guidelines and justifications for any recommendation for an upward or downward departure “shall be in writing and filed with the Clerk of Court,” no later than the day before the scheduled hearing.
At that point, Ms. Dehghani-Tafti filed a petition in the Supreme Court of Virginia. In Re: Parisa Dehghani-Tafti, Petitioner asked the court to stop the judges of the 17th Circuit Court from demanding written nolle prosequi and case dismissal justification.
From an amicus brief supporting the petition:
CA Dehghani-Tafti campaigned on a pledge to change the types of cases to which her office would devote its limited resources….
Despite the order’s procedural focus, there are good reasons for concern that the rationale underlying the order stems from a judicial attempt to oversee the prosecutor’s decision-making, and in effect intervene, to prevent the Commonwealth’s Attorney from making independent decisions that the court does not agree with. That is antithetical to the role of a judge.
The order sets a dangerous precedent that would strip elected prosecutors of the autonomy to make decisions around the safety and well-being of their local community and would, by extension, erode the rights of local voters to have a say in that vision.
On the 18th day of December, 2020, the Virginia Supreme Court considered her plea and the amicus brief and ruled. She lost.
The Fairfax County Circuit Court thus has similar authority. I do not know what that court has done or will do, if anything, regarding Mr. Descano’s decisions.
Mandamus. A colleague inquired whether a writ of mandamus can be issued against a CA.
In common law,
A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
See § 17.1-309. for a Virginia law on mandamus.
The Supreme Court shall have jurisdiction to issue writs of mandamus and prohibition to the circuit and district courts, the Court of Appeals, and to the State Corporation Commission and in all other cases in which such writs, respectively, would lie according to the principles of the common law. [Bolding added]
Mandamus was sought and denied against a circuit court by In Re: Parisa Dehghani-Tafti, Petitioner.
I do not know whether, under Virginia law, a writ of mandamus may be issued against a Commonwealth’s Attorney.
I welcome the comments of attorneys on all of this.
Updated Jan 30 at 6:36 AM
