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A three-justice panel of the Virginia Supreme Court has dismissed a request from Norfolk prosecutors to order the Norfolk Circuit Court to dismiss two marijuana-possession charges they sought to have tossed out.

Greg Underwood, the Norfolk commonwealth’s attorney, argued that he had unfettered discretion to dismiss criminal charges and that the constitutional separation of powers requires that he be allowed to exercise that discretion free from judicial constraint.

“We disagree on each count,” the justices wrote in a ruling issued Thursday. Among other things, their six-page ruling said, “As we have explained repeatedly, the act of rendering a binding judgment is a quintessentially judicial function that cannot be compelled.”

L. Steven Emmert, who practices frequently before the Virginia Supreme Court, said Underwood no longer wished to prosecute such charges because doing so disproportionately affects African Americans.

The circuit judges believed Underwood was stepping on legislative toes by effectively decriminalizing simple possession in Norfolk. Underwood filed mandamus petitions, asking the Supreme Court to compel the judges to perform what he described as a ministerial act.

Emmert wrote on his blog Thursday: “This ruling has troubling implications, in my view. Let’s take a peek at the map and see where this road leads.

“If it really is true that a court can refuse to allow the party with the burden of proof to dismiss the case without proceeding further, what about civil suits? If a plaintiff decides to pull the plug on her lawsuit and hands up a dismissal order, can the judge refuse it and require her to call her first witness?” Emmert wrote.

“Does this mean that a circuit court judge can force the elected Commonwealth’s Attorney to try a case that he wants to dismiss? Does he have no prosecutorial discretion?” he asked.

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