30 April 2006

Be Careful What You Ask For

In Virginia if a prosecutor chooses not to go forward on a case he usually makes a motion for nolle prosequi - usually referred to as a motion to "nul pross." In theory a judge could deny this motion but in reality the prosecutor can get a nolle prosequi because it's the second Tuesday of April and his tarot reading told him he wouldn't succeed in efforts on this date. Some judges will ask if the defense objects but they'll grant the motion every time (not really the trial judge's fault - case law tells her to do this). Basically, the a nolle prosequi is what other States call a dismissal without prejudice.

Sometimes a prosecutor will move a dismissal. I have never heard a judge in Virginia qualify a dismissal with terms such as with or without prejudice. I've heard fellow defense attorneys opine and some judges hint that every dismissal in Virginia a dismissal with prejudice. I've even heard what I think are implicit admissions from prosecutors that this is the state of the law; i.e. "As part of this plea agreement we're going to move dismissal instead of nul prossing, Your Honor." However, it's always been an area where I've been uncomfortable.

The prosecutor in Roe v. Commonwealth moved to dismiss three charges. Then he went and re-indicted Roe. The defense attorney argued that the dismissal was with prejudice. The government argued that it was the equivalent to a nolle prosequi or a dismissal without prejudice. Both the trial court and the court of appeals resolved the ambiguity in favor of the prosecutor and held that it was a dismissal without prejudice. The Virginia Supreme Court, without dissent, overturns this and finds that the dismissal was a dismissal with prejudice.

It may be a little early to be entirely certain but it seems that the Virginia Supreme Court is trying to convince the Court of Appeals that ambiguities in the record must be decided in favor of the defendant (see also Overby v. Commonwealth). If the prosecutor had moved for a dismissal without prejudice I think it would not have come out in the defendant's favor. However, merely moving a dismissal is ambiguous without something further in the record and therefore must be interpreted as a dismissal with prejudice.

As a matter of actual practice, I think this settles the question of whether a dismissal in Virginia is with prejudice or not: it is a dismissal with prejudice. While I think a prosecutor could, under this decision, still move for a motion to dismiss without prejudice he's not going to do that. When he wants to be able to bring the case back he will move for nolle prosequi.

Now for the interesting thought. When a preliminary hearing is held the general district court judge can find a lack of probable cause and dismiss a case rather than certify it to the grand jury. Many times the prosecutor just goes straight to the grand jury anyway and directly indicts for a trial in the circuit court. However, there's now a colorable argument that the general district court judge's dismissal carries prejudice and jeopardy attaches. Very interesting . . .

Found at: Va App. News - Every Virginia Lawyer should be reading this blog so you can keep up with latest appellate rulings.


Anonymous said...

That's a very interesting case because it creates something that never existed before in Virginia criminal law: "dismissal with prejudice." This legal device does not exist in the Rules of the Supreme Court, it does not exist in statutory law, and it did not before this case exist in the common law of Virginia. Before this case, one could dismiss a case, and then the sole question was whether jeopardy had attached. If it had, there could be no retrial. If jeopardy had not attached, there was no bar to retrial.

In this case, there was no jeopardy, since the defendant was not even present. No arraignment had even occured, and no plea had been entered. Without jeopardy attaching, the result should be: dismissal, but retrial permitted.

What the Court in this case does is say there is now something called "dismissal with prejudice," and that it existed in this case, despite the fact that neither the trial court nor the parties nor the appellate courts could point to any express language stating that the dismissal was "with prejudice."

Talk about elevating form over substance. This was nothing but an inartfully phrased nolle prosequi motion. It has nothing to do with giving the prosecution some benefit of a doubt. The SCV just created a new procedure out of whole cloth and put a violent criminal back on the streets.

The general procedure in Anglo-American jurisprudence is not to promulgate new procedural rules and apply them ex post facto. It's a matter of basic fairness to the litigants, so they can know and rely upon the rules. Here, they created a new rule that did not exist when the case was tried. The SCV apparently missed that class in law school.

Ken Lammers said...

You are probably right in stating that the prosecutor made a mistake. In fact, I'm sure you are since he went right out and re-indicted. It was still a dismissal.

Basically the court has made a ruling which says nolle prosequi is what other States call dismissal without prejudice and dismissal is what other States call dismissal with prejudice. I would say that this is generally how I've seen it treated in the trial courts. However, I am aware that there was a minority treatment in the opposite direction which tended to become more likely as the cases got more serious.

I may be over-reaching when I state that this was about the Supreme Court deciding ambiguities in the defendant's favor, but it strikes me that if this had not previously been addressed in the rules, statutes, or case law there was a built in ambiguity: what does dismissal mean?

We now know. Dismissal means the case ain't coming back.

Anonymous said...

Interesting point on the dismissal at a PC hearing. I have long wondered what really was the point of the prelimiary hearing in Virginia law. Case law tells us it is not to be used as a discovery device, which it inevitably becomes, so far as the Commonwealth introduces witnesses. For that reason it is a benefit to the Defendant. But of what benefit is it to the prosecution when it has the ability to directly indict at the grand jury level? For the prosecution, the preliminary hearing is an unnecessary and unrequired step in the criminal process. Why waste your time exposing your witnesses and case theory to defense counsel without needing to? If this procedural quirk works its way down the totem pole, you won't see any PC hearings anymore.