In January, Norfolk Commonwealth’s Attorney Greg Underwood sent judges a letter telling them he intended to dismiss all misdemeanor possession of marijuana cases referred to his office. In legal terms, this is what is called:
In an effort to convince judges to go along with the plan, his office cited statistics showing that black residents are far likelier to be prosecuted for marijuana possession (81% of those charged with misdemeanor marijuana possession despite being only 42% of the city’s population). By the way, the race disparity isn’t just a Norfolk phenomenon. A review of court records published on VirginiaMercury.com shows that huge disparities exist in all of Virginia’s 10 biggest cities. In my hometown of Virginia Beach, 57% of marijuana possession defendants are black despite being only 20% of the population. So it's time to head to Norfolk to blaze up, amirite!
The Norfolk Circuit Court judges expressed that they found Underwood’s proposal to be “wack” and refused to go along with dismissing weed cases. Their reasoning was that prosecutors don’t get to make laws. That’s up to the elected legislators who sit up in Richmond. The judges said that Underwood should take his beef up with them.
Instead, Underwood took his arguments to a different place in Richmond, the Supreme Court of Virginia, where he was met with a rude reception. Here is an article from the Richmond Times Dispatch:
"The law game can be a humbling one. Norfolk Commonwealth’s Attorney Greg Underwood learned that at UFC 200: Rumble in Richmond. Underwood, the once seemingly invincible juggernaut destined to single-handedly decriminalize marijuana in Norfolk, tapped to a rear-naked choke applied by Chief Justice Donald Lemons on Thursday night. "This is what you get when you intrude into the legislature’s domain, m-----f-----," Lemons proclaimed. "There's a new king in this b…. " Even in defeat, Underwood remained defiant boldly declaring,“I’m the best ever. I’m the most brutal, vicious, and most ruthless Commonwealth there’s ever been. There’s no one can stop me from unleashing the beautiful smell of the dankest chronic on all of Norfolk. My style is impetuous. My defense is impregnable. And I’m just ferocious. I want your heart. I want to eat his children. Praise be to unfettered prosecutorial discretion!”
(Note to readers. We made this up. Although it is more entertaining than reading a 6 page order that boils down to the Supreme Court saying that judges can't be forced to grant motions to dismiss marijuana cases).
This whole thing has seemed like a silly WWE charade from the beginning to me. So a judge refuses to dismiss a motion to dismiss a misdemeanor marijuana case. Now what? A judge can't force a prosecutor to present a case.
Judge: The defendant has pled not guilty to possession of marijuana. Ms. Prosecutor, who is your first witness?
Prosecutor: I’m not going to call any witnesses your honor.
Judge: Yes you will.
Prosecutor: No I won’t.
Judge: Yes you will. [Judge descends from bench and places prosecutor in headlock]
Call your first witness, bitch!
For real though, what possible course of action other than dismissal does a judge have if a prosecutor refuses to present a case? Virginia Code 15.2-1627 states that prosecutors have “the duty of prosecuting all warrants, indictments or informations charging a felony, and...may in his discretion, prosecute Class 1, 2 and 3 misdemeanors.” That language does not seem ambiguous to me. Duty to prosecute felonies, Discretion to prosecute misdemeanors. Underwood is exercising his statutorily granted authority to decline prosecuting misdemeanor weed cases. If there are judges who have a problem with that, maybe they should take it to Richmond.