GENERAL INTEREST significant questions arose about judicial and complainant roles. Commonwealth’s attorneys are not obligated to prosecute misdemeanors. Virginia statutory law makes it clear that a com-monwealth’s attorney is not obligated to pros-ecute misdemeanors. “he may in his discretion , prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more . . . .” 6 Police officers and complainants often appear pro se, unless municipal attorneys appear. When neither commonwealth’s attorneys nor municipal attorneys appear, police officers or private complainants present the case pro-se. Such a practice is consistent with tradition— private complaints and law officers traditionally appeared before justices of the peace, with-out public prosecutors. “[T]he judge usually shepherds the case along and does not allow the complaining witness to act as prosecutor.” 7 When a commonwealth’s attorney does not represent the Commonwealth, the judge does not act improperly by asking questions at trial. 8 There certainly is no problem with the county, town, or city attorney prosecuting mis-demeanor cases; 9 this simply is an allocation of responsibility among different public officers in the executive branch. Special prosecutors are appointed rarely. Circuit courts have the authority to appoint special prosecutors, 10 but they rarely do so when commonwealth’s attorneys are not involved. “I have never appointed a private prosecutor and cannot imagine the circumstances under which I would,” said one Virginia judge. “I would be concerned about the private prosecutors’ loyalty being to the complainant, and not the interests of the Commonwealth. “ Private attorneys with an interest in the case are disqualified from appointment as special prosecutors, and when a private attorney is appointed to assist a prosecution, the common-wealth’s attorney must remain in control of the case, under Cantrell v. Commonwealth . 11 Substitutes for declination and nolle pros decisions are murky. The possibility for prosecutorial discretion being exercised through declining to bring charges altogether (“declination”), dismissal of charges with prejudice, or by a motion for nolle prose-qui is absent in pro se prosecutions, although a private complainant or a police officer may drop the case once an arrest warrant or summons issues. Whether a judge can decline a criminal case on prudential grounds is uncertain. To be sure, judges have large discretion in handling crim-inal cases. They review nolle prosequi motions for good cause. 12 They consider a wide variety of factors in imposing sentences. 13 They can suspend sentences, 14 impose terms of proba-tion, 15 and defer disposition. But the power of a judge to exercise prosecutorial discretion when no commonwealth’s attorney appears is uncer-tain. 16 In the federal courts, unresolved contro-versy surrounds judicial nullification, some-times referred to as the judicial “prerogative of leniency.” 17 The Virginia Court of Appeals said quite plainly, in Taylor v. Commonwealth , 18 that Virginia trial judges may not exercise prosecuto-rial discretion like a commonwealth’s attorney. 19 But then, the Virginia Supreme Court, in Starrs v. Commonwealth , 20 reversed the Court of Appeals and emphasized the rule that trial judges enjoy broad discretion to defer disposi-tion until they make formal findings of guilt. 21 The majority did not say so explicitly, but Justice McClanahan’s dissent characterized the majority decision as approving prudential dismissals. 22 Deferring disposition is different from adjudicating guilt and suspending sentence. A deferred disposition does not involve conviction of a crime. 23 Some statutes authorize deferred disposition without an adjudication of guilt ever occurring, 24 but in Epps v. Commonwealth , the Virginia Court of Appeals held that, absent statutory authority, a trial judge may not vacate a conviction at the competition of a suspended sentence. 25 The need for a screening device in police officer and pro se prosecution militates in favor of some kind of screening device, and thus Starr should be interpreted to permit exercise of judicial discretion similar to prosecutorial discretion. If, for example, a commonwealth’s attorney has been involved in a misdemeanor prosecu-tion and has nolle prossed the case, the judge certainly should be able to dismiss it on those grounds alone if the complainant subsequently procures an arrest warrant from a magistrate and tries to prosecute the same defendant for the same crime, himself. www.vsb.org GENERAL INTEREST | VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 31