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Ruling challenges Va.’s tradition of judges, police officers prosecuting misdemeanor cases

Fairfax County Commonwealth’s Attorney Steve T. Descano has declined to have prosecutors handle some misdemeanor cases, citing a lack of resources.
Fairfax County Commonwealth’s Attorney Steve T. Descano has declined to have prosecutors handle some misdemeanor cases, citing a lack of resources. (Tom Jackman/The Washington Post)
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Fairfax County’s top prosecutor announced over the summer his office would no longer participate in many misdemeanor cases, saying he didn’t have the staffing to thoroughly examine and ethically prosecute each.

The cases often went forward anyway with judges and police officers stepping in as de facto prosecutors, a practice that is common in other jurisdictions across Virginia to help move a crush of lesser offenses through the state’s courts.

But this month, a Fairfax County judge dismissed one of those cases on appeal in circuit court, finding the arrangement was unconstitutional and the absence of a prosecutor deprived the defendant of fundamental safeguards for an equitable proceeding­.

The ruling, which lawyers involved said is the first of its kind in Virginia, applies only to the case of a man accused of violating court restrictions related to a drunken driving conviction. But attorneys for the defendant hope it becomes a blueprint for challenging a statewide system they say shortchanges the accused in thousands of misdemeanor cases each year.

“If the commonwealth is not there, there should be no case,” said Danielle Brown, one of the defense attorneys. “There is no way to constitutionally or ethically proceed on these matters absent a commonwealth attorney.”

Her client Harwinder Sangha, who had a previous conviction for drunken driving, was charged in February 2020 with driving a car without an ignition interlock, a device with a breathalyzer that prevents intoxicated drivers from starting a vehicle; driving on a DUI-suspended license; and driving with an open container of alcohol.

Fairfax County Commonwealth’s Attorney Steve T. Descano declined to participate because the case fell into a category of misdemeanors, which includes some property crimes, nuisance issues such as trespassing and other cases that he said his office does not have the resources to give appropriate attention.

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Descano says the Fairfax County prosecutor’s office is one of the most underfunded in the state and he must preserve its staff for the most critical​ offenses. His office still handles some weightier misdemeanors such as serious domestic violence, sexual battery and DUI.

Under Virginia law, prosecutors’ offices are required to handle all felonies and some appeals but are not obligated to prosecute misdemeanors, and many commonwealth’s attorneys across the state do not. Descano points out his office still handles more misdemeanors than some other prosecutors in the state.

Before Sangha’s trial in Fairfax County General District Court in August, the defense team filed a motion seeking to have the case dismissed on a range of constitutional grounds.

Brown and attorney Mark ­Rasch said in an interview that when judges are the ones questioning officers and witnesses — taking on a role a prosecutor would fill if they handled the case — they are abdicating their role as a neutral arbiter and the move violates the Constitution’s separation of powers between the judicial and executive branches.

The defense attorneys argue the absence of a prosecutor degrades a defendant’s due-process and fair-trial rights because the commonwealth provides a range of critical functions that aren’t replaced: evaluating whether a case is worth pursuing, examining whether police legally conducted an investigation, negotiating a plea deal, and reducing or dismissing charges.

Most important, they said, no one plays the key role of finding and turning over evidence that might point toward a defendant’s innocence, something prosecutors are legally required to do.

Fairfax County General District Judge Susan Earman dismissed the defense team’s motion and proceeded with Sangha’s trial, questioning the police officer involved and ultimately convicting Sangha on the count of driving without an ignition interlock.

The defense team indicated in filings the trial exhibited some of the pitfalls of the system. Under questioning from defense attorneys, the police officer who cited Sangha admitted he had not looked for any exculpatory evidence that might be turned over to the defense, according to defense filings. Earman sentenced Sangha to six months in jail, a term the defense team calculated was nine times longer than any sentence for a similar offense in Fairfax County in the previous two years.

Sangha appealed his conviction to Fairfax County Circuit Court. When Descano’s office again refused to participate in the case, Sangha’s attorneys filed a new motion to have it dismissed.

Fairfax County Circuit Judge Richard Gardiner took the issue under advisement and put out a call for legal briefs from any interested party. The American Civil Liberties Union, a police association, a victims’ rights group, the public defender and others responded.

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Gardiner wrote in a lengthy opinion that the charge against Sangha appeared legitimate, so he was reluctantly dismissing the case. Gardiner wrote he could not ignore the defendant’s right to exculpatory evidence, established by the Supreme Court case Brady v. Maryland.

“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. “And the court cannot allow [the] defendant to be deprived of his rights pursuant to Brady and its progeny.”

Descano, who argued in a brief it was legally permissible for the cases to go forward without a prosecutor, said in a statement he nevertheless welcomed the ruling.

“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 recent months, the Fairfax County Board of Supervisors has added 15 positions to the prosecutor’s office and has added funding for an additional 15 in next year’s budget, which has yet to be approved.

Descano said the increased staffing will allow his office to handle more misdemeanors.

Descano’s office was skeptical of the defense attorneys’ contention that the ruling might serve as a road map to challenge misdemeanor cases without a prosecutor in the state’s lower general district courts, where the vast majority of such cases are tried.

Descano’s move to withdraw prosecutors from misdemeanor cases has been controversial.

Mehagen D. McRae, an attorney who specializes in assisting victims of domestic violence, complained that Descano’s office is not handling some domestic assaults that do not involve intimate partners, leaving victims to navigate the justice system on their own. She said some offenders are also going unpunished because such cases are more likely to collapse without a prosecutor guiding them.

“You’re re-traumatizing a victim that has already been traumatized,” McRae said.

Descano’s office said in response it is evaluating each domestic violence case and pursuing the most serious.

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