But after Dehghani-Tafti was elected in November, the pushback to her agenda was quick.
On Jan. 7, six days after she took office, she moved to dismiss a marijuana possession charge set for trial in Arlington Circuit Court. Prosecutors dismiss cases all the time, for all manner of reasons, and the process in court typically takes seconds with rare explanation from prosecutors.
Instead, an Arlington judge demanded a written brief from the prosecutor explaining the reasons for the marijuana dismissal, then scheduled oral argument on the issue, even though the defendant did not object to having his case dropped. Two months later, the Arlington judges entered a written order requiring prosecutors to spell out their reasons, “in detail all factual and not conclusory bases,” for dismissing or amending charges in all cases, to explain the “good cause” required by Virginia law for a “nolle pros,” or non-prosecution, or a dismissal with prejudice.
Dehghani-Tafti responded with her own pushback. Saying that the Arlington circuit judges are violating her prosecutorial discretion in how to charge cases, she has gone to the Virginia Supreme Court and asked it to order the Arlington judges to withdraw their order for written explanations of all proposed dismissals. No timetable has been set for when the Supreme Court might hear or decide the case.
It’s the latest battle between law enforcement entities that have seen cases handled a certain way for decades, and prosecutors who want to try a new way. In Boston, a trial judge tried to prevent the new prosecutor from dismissing a case against a protester, only to be reversed by a higher court. In Philadelphia, the legislature gave the state attorney general ability to take over prosecution of gun cases from the new prosecutor. In St. Louis, the governor is seeking to give the state attorney general “concurrent jurisdiction” in murder cases with the new prosecutor. In Fairfax County, some judges have resisted the new prosecutor’s attempts to dismiss all simple marijuana cases.
“The only difference I see” in the handling of criminal cases, Dehghani-Tafti said, “is who’s sitting in this [prosecutor’s] seat. There’s been a seismic shift in who sits in these seats, and it’s been at the behest of the community. I ran on certain policies, saying what we’re going to do, being transparent about it and letting the community decide. The person sitting in this seat reflects the priorities and desires of the community, and has a mandate. The judges don’t, because they are not elected.”
The Arlington circuit judges who began seeking written briefs on all dismissals in January, then made it a written order in March, are Chief Judge William T. Newman and circuit judges Daniel S. Fiore II, Louise M. DiMatteo and Judith L. Wheat. They declined to comment on Dehghani-Tafti’s motion for a writ of mandamus to the Supreme Court. But in an opinion on the January case that provides an insight into the judges’ thinking, Fiore wrote that Dehghani-Tafti’s intention to drop many marijuana cases essentially nullifies a law passed by Virginia legislators.
The Virginia Attorney General’s Office said the law firm of Sands Anderson had been hired to defend the judges, but the firm did not respond to requests for comment.
Dehghani-Tafti’s motion is supported by an amicus brief from 62 prosecutors around the country, including the district attorneys in New York City, San Francisco, Boston, Philadelphia and Chicago. It’s also supported by Jeff Haislip, the Fluvanna County, Va., prosecutor who is chair of the Virginia Commonwealth’s Attorneys’ Services Council, and the prosecutors in Alexandria city, Fairfax and Loudoun counties.
“Tellingly,” the supporting prosecutors wrote, “courts historically did not interfere with prosecutorial discretion when that discretion was being used to ramp up prison and jail populations and fuel ‘tough on crime’ thinking and mass incarceration. It is particularly troubling that, now, as reform-minded prosecutors are being elected in cities and counties across the country, courts are intervening in charging and prosecutorial decisions perceived by some to be too lenient.”
The section of Virginia code at issue in the case is short and direct: “Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.” Cases that are “nolle prossed,” or not prosecuted, may be charged again in most cases, while a “dismissal with prejudice” may not be charged again.
Two bills are pending in the Virginia General Assembly that would give prosecutors much greater latitude to dismiss cases without judges’ approval, and both have been approved by committees during the legislature’s special session on justice reform.
In most jurisdictions, when a prosecutor states they want to “nolle pros” or dismiss a case, the defendant doesn’t object and the judge approves the ending of the case, usually with no explanation from a prosecutor or inquiry from a judge. Dehghani-Tafti’s brief notes that last fall, when the Arlington public defender asked for the prosecutor to state the “good cause” for a nolle pros, Judge Newman responded, “Well, they don’t have to give a proffer for good cause unless … you’re seeking a dismissal.”
In January, when Arlington prosecutors wanted to nolle pros a case of marijuana possession, Judge Fiore requested briefs, oral argument, then issued a 10-page opinion in July. “Essentially,” Fiore wrote, “the Commonwealth argues public policy as the reason to disregard a criminal statute that was fully considered, voted on and passed by both chambers of the Virginia General Assembly,” and the reason to nolle pros a case.
“The Court will not sanction an executive’s opinion,” Fiore added, “that a law passed by the Virginia legislature is an ineffectual law, for in doing so the Court would be partisan and thus violate the Judicial Canon prohibiting partisan consideration when rendering an opinion or judgment of the Court.” Fiore then nolle prossed the case, anyway, because lab tests on the marijuana were legally insufficient.
Dehghani-Tafti’s brief argues that the Arlington judges not only encroached on her prosecutorial discretion, used by prosecutors and police constantly in deciding how to charge a defendant, but also exceeded their authority by demanding written reasons for nolle prosses in every case. She said that would be burdensome on attorneys already carrying large daily caseloads.
Resistance from the judiciary in Arlington, Fairfax and Norfolk caused an assistant commonwealth’s attorney in Hampton, Va., Del. Michael P. Mullin (D) to file a bill that states that when a prosecutor seeks to dismiss a case, “a court shall grant the motion” unless the motion was made for illegal reasons. In the Senate, defense attorney Sen. Scott Surovell (D-Fairfax) introduced a bill to define “good cause” to include cases “not in the interests of the Commonwealth to prosecute … at such time.” Both are set to be considered by their respective houses in the coming weeks after being voted out of committee.
The case raises a similar issue to one still being fought out over the prosecution of former national security adviser Michael Flynn in federal court in Washington. After Flynn pleaded guilty, the Justice Department moved to dismiss the case against him, prompting accusations of favoritism. U.S. District Judge Emmet G. Sullivan declined to immediately grant the Justice Department’s motion, unleashing a torrent of disapproval from many who said the judge was improperly overriding prosecutorial discretion.
“Simply put,” a group of 15 Republican attorneys general wrote in an amicus brief supporting the dismissal, “the decision not to pursue a criminal conviction is vested in the executive branch alone — and neither the legislature nor the judiciary has any role in the executive’s making of that decision.”