Pros­e­cu­tor pushes to main­tain dis­cre­tion on drop­ping charges

Daily Press (Sunday) - - News - By Matthew Barakat As­so­ci­ated Press

FALLS CHURCH — A north­ern Vir­ginia pros­e­cu­tor who says her county’s judges are in­fring­ing on her dis­cre­tion to dis­miss charges and en­ter plea bar­gains is ask­ing the state Supreme Court to in­ter­vene on her be­half.

Ar­ling­ton County Com­mon­wealth’s At­tor­ney Parisa De­hghani-Tafti filed a pe­ti­tion Fri­day ask­ing the court for a re­lief from a pol­icy im­posed by the county ’s four Cir­cuit Court judges.

In March, two months after De­hghani-Tafti took of­fice, the judges re­quired pros­e­cu­tors to file a writ­ten brief ex­plain­ing them­selves any time they de­cide to drop charges or en­ter a plea bar­gain.

De­hghani-Tafti was one among a cadre of pros­e­cu­tors in north­ern Vir­ginia and across the na­tion to win of­fice on a re­form agenda, promis­ing not to pros­e­cute low­er­level drug of­fenses.

She said that the or­der is not only time-con­sum­ing, but po­ten­tially dam­ag­ing in cases where the rea­sons for drop­ping a case should re­main pri­vate, like pro­tect­ing a broader in­ves­ti­ga­tion or in cases of do­mes­tic vi­o­lence where a vic­tim de­clines to co­op­er­ate.

“It is not wise for us to be putting in all those de­tails, and the court should know that,” she said.

A call to judges’ cham­bers in Ar­ling­ton County seek­ing com­ment was not im­me­di­ately re­turned Fri­day. In an opin­ion last month, one of the judges, Daniel Fiore, pro­vided in­sight into his think­ing when he re­jected an ar­gu­ment by pros­e­cu­tors that they were en­ti­tled to dis­miss mar­i­juana pos­ses­sion charges be­cause they saw en­forc­ing that law as a poor use of ju­di­cial re­sources.

“(T)he de­ci­sion by the ex­ec­u­tive branch to ef­fec­tively nul­lify a statute passed by mem­bers of the Vir­ginia As­sem­bly, who were duly elected by the cit­i­zens, fails to con­sti­tute good cause” to dis­miss charges, he wrote.

The is­sue is play­ing out na­tion­ally in dif­fer­ent ways. In Mary­land, Re­pub­li­can Gov. Larry Ho­gan has crossed swords with Bal­ti­more pros­e­cu­tor Mar­i­lyn Mosby after Ho­gan tried to di­vert more re­sources to the state at­tor­ney gen­eral’s of­fice to pros­e­cute cases in the city.

And in Mis­souri, the leg­is­la­ture is con­sid­er­ing a bill filed dur­ing an on­go­ing spe­cial ses­sion sought by the state’s Re­pub­li­can gov­er­nor that would give the state’s at­tor­ney gen­eral over­lap­ping ju­ris­dic­tion to pros­e­cute cases amid com­plaints that St. Louis Cir­cuit At­tor­ney Kim­berly M. Gard­ner is too le­nient in bring­ing charges.

Both Mosby and Gard­ner are among 60 cur­rent and for­mer pros­e­cu­tors who have signed on to a friend-of-the-court brief sup­port­ing De­hghani-Tafti’s pe­ti­tion in Vir­ginia.

Miriam Krin­sky, ex­ec­u­tive di­rec­tor of Fair and Just Pros­e­cu­tion, the or­ga­ni­za­tion that sub­mit­ted the friend-of-the-court brief, said that while judges have their own dis­cre­tion to ques­tion on a case-by-case ba­sis a pros­e­cu­tor’s mo­tion to dis­miss a par­tic­u­lar case, she said that is­su­ing a blan­ket pol­icy re­quir­ing writ­ten jus­ti­fi­ca­tion for ev­ery de­ci­sion is ex­ces­sive.

“In the ‘ 80s and ‘ 90s pros­e­cu­tors used their dis­cre­tion to ramp up mass in­car­cer­a­tion, and judges never sec­ond-guessed or in­ter­fered with that,” she said.

“Now we have this sweep­ing or­der in all cases in Ar­ling­ton County where an elected com­mon­wealth’s at­tor­ney is want­ing to do ex­actly what vot­ers elected her to do.”

In Ar­ling­ton, De­hghani-Tafti said that in pre­vi­ous years, 75 per­cent of dis­missed cases were han­dled on oral mo­tions only, of­ten tak­ing only a minute or two.

She ac­knowl­edged that pros­e­cu­to­rial dis­cre­tion cuts both ways, say­ing a ru­ral pros­e­cu­tor in a ju­ris­dic­tion that has de­clared it­self a Sec­ond Amend­ment sanc­tu­ary also en­joys the dis­cre­tion to de­cline pros­e­cu­tion on firearms charges. She said, though, that her ef­forts to pass on low-level drug cases are dis­tin­guish­able on pol­icy grounds, be­cause she is mov­ing in the same di­rec­tion as the leg­is­la­ture, and that her ap­proach to drug prose­cu­tions is ev­i­dence­based.

“Pros­e­cu­to­rial dis­cre­tion has been around as long as pros­e­cu­tors have been around,” she said.

SCOTT EISEN/TNS

Mary­land Gov­er­nor Larry Ho­gan has tried to di­vert re­sources to the state at­tor­ney gen­eral’s of­fice to pros­e­cute cases in Bal­ti­more, an­ger­ing crit­ics.

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