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Judge pushback on dismissals- Fairfax criminal defense lawyer weighs in

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Judge pushback on dismissals- Fairfax criminal defense lawyer weighs in- Photo of courtroom

Judge pushback on dismissals- Fairfax criminal defense lawyer weighs in

Judge pushback on defense-friendly commonwealth action contravenes prosecutorial discretion, says Fairfax criminal defense lawyer

Judge pushback on criminal defense-friendly prosecutorial discretion — including motions to enter cases nolle prosequi / dismissed, and to amend charges downward — is taking place in at least one county (Arlington) where a self proclaimed reformist chief prosecutor has been in office since January 2, 2020. As a Fairfax criminal lawyer, I know that such pushback is law-limited in that “‘prosecutorial discretion is an inherent executive power.'” In re Horan, 271 Va. 258 (2006). Moroever, “‘the institution of criminal charges, as well as their order and timing, are matters of prosecutorial discretion.’” Id. The foregoing quoted Virginia Supreme Court caselaw precludes Virginia trial judges from rejecting the parties’ mutual agreement to enter criminal charges as nolle prosequi or dismissed, or to amend criminal charges without objection from the criminal defendant.

When a judge acts sua sponte without adversarial input, an insufficient order can result

On March 4, 2020, the four Arlington County, Virginia, Circuit Court judges unanimously ruled sua sponte — on their own motion, apparently without a notice and comment period — that all prosecutorial motions to amend or dismiss criminal charges, or to enter them nolle prosequi, be in writing, filed in advance with the court, that “provide in detail all factual and not purely and not purely conclusory bases in support thereof…” In Re Criminal Dockets Beginning March 10, 2020, Misc No. 20000239-00 (Arl. County Circ. Ct.).

Virginia criminal defense lawyers and prosecutor should be ready to argue against judicial pushback against defense-friendly prosecutorial discretion

Pushback by one or more judges against nolle prosequi motions is apparently happening in the remaining two counties (Fairfax County and Loudoun County) where self-proclaimed reformists became the chief prosecutors this year, regardless of how much that pushback does or does not relate to increased numbers of such motions.

Separation of powers limits the pushback that judges may exercise, in the light of the inherent executive power of  prosecutorial discretion. In re Horan. While a nolle prosqui motion needs good cause for a judge to grant, that good cause exists when the parties consent to a nolle prosqui. Where the Norfolk chief prosecutor failed to obtain a Virginia Supreme Court order for trial judges to grant his nolle prosequi motions in marijuana cases, that was without consideration of circumstances where the defense consents to such motions. Therefore, Underwood does not dilute my foregoing arguments nor the pronouncements in In re Horan, supra.

Judicial economy will be served by permitting nolle prosequi and dismissal motions consented to by the parties

By definition, judging includes enforcing caselaw and statutes with which judges sometimes vehemently disagree on a personal level. Such disagreement is permissible so long as the trial judge adheres to the governing law.

Moreover, judicial economy is served when judges permit nolle prosequi and dismissal motions consented to by the parties. Already heavy court dockets are freed up when judges permit parties mutually to effectuate such relief when neither party is interested in prosecuting the original criminal charge in the first place.

Fairfax criminal lawyer Jonathan L. Katz is a highly-rated Northern Virginia attorney pursuing your best defense against felony, misdemeanor, and DUI prosecutions. Please call 703-383-1100 to schedule a free in-person confidential consultation with Jon Katz about your court-pending criminal case. 


  1. john iorio on March 8, 2020 at 9:02 pm

    I like that brand new self proclaimed reformist chief prosecutor…..he’s my kind of buntar…It figures judicial blowback would be the result…big whoop, so they have to put it in writing, thats a progressive reform

  2. Dennis on March 25, 2020 at 9:20 pm

    I have many experiences like this…\::/