In the final days of 2020, the ACLU of Virginia filed an amicus brief in the case of Commonwealth of Virginia v. Harwinder Sangha in the Circuit Court of Fairfax County, which invited amici to address whether the Circuit Court should proceed with a misdemeanor trial even though the Commonwealth Attorney for Fairfax County, Steve Descano, had decided he would not—and could not ethically—dedicate valuable prosecutorial resources toward low-level misdemeanors such as the one in this case, given the sheer number of criminal cases his office handles.
In its amicus brief, the ACLU of Virginia argues that trying Mr. Sangha in the absence of a prosecutor would require the judiciary to take on responsibilities that are fundamentally reserved for the Commonwealth Attorney—such as determining whether to prosecute, and cross examining the defendant—violating separation of powers and making it nearly impossible for the court to maintain the impartiality required to fairly adjudicate the case. Nor can the judge avoid constitutional concerns by relying on the presence of the complaining witness police officer, who will often have an interest in obtaining a conviction that is at odds with the prosecutor’s ethical duty to seek justice.
In this amicus brief, the ACLU of Virginia urged the court to dismiss Mr. Sangha’s case instead of acting as de facto prosecutor.
On March 29, 2021, the Circuit Court of Fairfax County ruled in favor of Mr. Sangha and dismissed his case. The Court concluded that Commonwealth Attorneys have discretion not to prosecute misdemeanor violations, and that when they decide not to expend the Commonwealth’s limited resources on a criminal prosecution, neither a police officer nor a crime victim may take on that prosecutorial role. Nor is it appropriate for the Court to “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,” either by deciding that a case may go forward to trial, or by calling or examining witnesses. The Court also noted that going forward with a prosecution in the absence of a prosecutor could result in constitutional violations, as defendants have no meaningful way to obtain exculpatory information as required under Brady v. Maryland.