Fairfax prosecutor absence should not be interpreted as an invitation to go to District Court by yourself

Fairfax prosecutor absence has for nearly a year been common for most Virginia misdemeanor cases in this county courthouse, other than for DUI, intimate partner assault, and fatal reckless driving cases. As a Virginia criminal defense lawyer, I know that this should not be a signal to forego hiring a lawyer in the expectation of a resultant weaker case against you. Instead, a qualified lawyer is still needed to take full advantage of any such weakness, and to compensate for the absence of a prosecutor who, depending on the case and circumstances, may have been delighted to have simply agreed to dismiss the case or amend it to a much more favorable offense, whether or not in exchange for such self improvement steps as community service and counseling.

Why do judges dislike the absence of a Fairfax prosecutor for criminal cases?

District Court judges clearly would prefer the involvement of a Fairfax prosecutor in all misdemeanor cases involving a criminal defense lawyer. Prosecutors are able to screen cases to decide whether to even proceed with a prosecution. They can evaluate cases to decide whether to offer to dismiss or amend the prosecution, with or without such quid pro quos as community service. Prosecutors have the power to move to dismiss a case with prejudice (a full and final dismissal) or without prejudice (also known as nolle prosequi) when judges will not automatically amend or dismiss a criminal charge merely on the recommendation of the case’s police officer — with the defendant’s consent — lest the police officer be acting in the role of a lawyer prosecutor without being either.

What are judges doing to adapt to the absence of a Fairfax prosecutor for most non-DUI misdemeanors

Judges know that the absence of a Fairfax prosecutor in the majority of non-DUI misdemeanor cases is a present reality. In recognition of that reality, the Fairfax County, Virginia, Circuit Court has amended blue trial advisement sheet (used to present continuance and disposition agreements to the judge) to a purple trial advisement sheet (pictured above), in which the defendant choosing to plead guilty or no contest in a case without a prosecutor notifies the court of the same. This is distinguished from the blue trial advisement sheet which involves a prosecutor. Because I am a trial lawyer — not a guilty plea attorney nor no contest / nolo contendere attorney — I also see these purple sheets as an opportunity to ask the court to call my case if the case’s police officer has a favorable recommended case disposition with which the defense agrees, or to inform the court of a satisfaction and discharge agreement with the complainant, which is discussed further below.

Satisfaction and discharge is all the more important a tool when a prosecutor is not involved with the prosecution

Fortunately, virtually all (not family assault) Virginia district court misdemeanor cases involving an alleged civilian victim are eligible for dismissal through the commonwealth’s satisfaction and discharge (S&D) law. For case dismissal to proceed forward with Virginia’s satisfaction and discharge law (also known as accord and satisfaction), the complaining witness merely needs to inform the trial judge that the complainant acknowledges receipt of satisfaction from the defendant, and asks the court to dismiss the criminal action. An extra bonus for the criminal defendant with S&D is that a waiver of any possible civil lawsuit by the complainant can be separately agreed to in writing with the complainant when the defendant offers item(s) of value or money in seeking satisfaction and discharge. Yes, Virginia’s S&D law allows agreeing to pay funds or other items of value to a complainant for a resultant S&D dismissal. Even if a Fairfax prosecutor is not involved in a case, S&D is available to pursue.

Why do I need a lawyer to pursue a satisfaction and discharge resolution?

Nothing guarantees that the complainant in a Virginia misdemeanor case will accept a satisfaction and discharge disposition. Nothing guarantees that the trial judge will accept the parties’ satisfaction and discharge request. Having a lawyer present for the defendant — whether or not a Fairfax prosecutor is involved — shows the judge that the defendant probably let their lawyer handle all S&D negotiations, thus removing the element of possible threats or unlawful or unseemly pressure place on the complainant by the defendant to seek such a disposition. Here is a sample suitable satisfaction and discharge draft order.

What if I cannot resolve my case that has no Fairfax prosecutor?

If you cannot resolve your case without proceeding to trial, you need a qualified criminal defense lawyer all the more, and to fully prepare with that lawyer well ahead of your trial date. Trials can be won, with a quality trial lawyer able to enhance the chance of trial victory all the more.

Fairfax criminal lawyer Jonathan Katz regularly defends in the Fairfax County courthouse and the rest of the Northern Virginia courts, against Virginia DUI, felony and theft prosecutions. It is ideal that you not choose your lawyer before speaking with Jon Katz, who will meet with you for a free scheduled in-person confidential consultation about your court-pending case, by calling us at 703-383-1100.