Below my own comments, there's a little commentary I got from a friend of mine who's representing a guy who's been attacked by his ex-wife's relatives; they initially got a warrant against him, fraudulently, and he was acquitted. He sued for malicious prosecution and won a judgment against them. Then he went to the magistrate and got a warrant against one of them for having bitten him - could have been charged as a felony, "malicious wounding", but the warrant was issued for a misdemeanor. The woman who was assistant Commonwealth's Attorney in the first case had already said she wouldn't prosecute the case against him; it appears to me as though she's treating this personally, and taking it as a "poor persecuted woman" against the "evil abusive man". In fact, the ex-wife's entire family appears to be in what I call "victim mode", and I think that they're hyper-defensive, lying, manipulative, deceptive, evil people. So when the case came up, the prosecutor "nolle pros'ed" the case - dismissed just because the prosecutor doesn't want to prosecute.
The thing is that the statute allowing the prosecutor not to do his duty to the public by prosecuting cases requires "good cause shown" - i.e., an evidentiary basis why the Commonwealth should not go forward with the prosecution. And none was offered in this (or most) cases - I've had judges tell me that the convenience of the prosecutor is good cause enough - the mere fact that they don't feel like it is good enough. Sometimes, as in my friend's case, the real cause is that the prosecutor has a cozy or sympathetic relationship with the perpetrator, and is treating the office like a personal fiefdom rather than an impersonal administrator of justice.
The problem for us is that I often, in fact usually, don't go to trial on the cases in which I represent people charged with crimes. They're almost always nolle pros'ed. I object because I think my client is entitled to absolute dismissal, and failing the Commonwealth's agreement or a judge's order as to that, I want to go to trial and show that my client is not guilty. I think he's entitled to an acquittal, absolutely and forever.
The problem with a nolle pros. is that it's a dismissal without prejudice to the Commonwealth's right to charge and prosecute for the same offense again at any time within the original statute of limitations. There's no "double jeopardy" issue with a nolle pros. So my client has this potential charge hanging over his head, for a year from the original incident for misdemeanors, and indefinitely for felonies. His alternative is an expensive action for declaratory judgment to the effect that he is not guilty of the crime, and no one ever does that. I object when the Commonwealth takes a nolle pros. like that, and the court notes the objection, but that and five bucks will get you a cup of coffee at gun-friendly Starbucks.
So let's say my client is charged with carrying a concealed weapon because he had the gun secured in a closed container within his vehicle. He has to hire me and pay my fee and waste a day going to court only to have the prosecutor decline to prosecute. The judge rubber-stamps the prosecutor's decision by failing to require "good cause shown". The client can't then go and sue for malicious prosecution, at least not right away, because they could retaliate by charging him again for the same offense, and at that point, one has to assume that they will bend the truth in order to get a conviction.
The answer is political, in my view. We need to exert pressure on the courts, via the legislature, and possibly the executive secretary of the Va. Sup. Ct., to require judges to make sure the prosecutors do the job they were elected to do. And Commonwealth's Attorneys who allow their assistants to work this way need to be un-elected.
This case is pending in the General District Court for the County of Fauquier in Warrenton.
