Here is an interesting little scenario that crossed our desks today, and was also discussed on the “listmail that shall not be named.”
Client charged with a crime.
Defense attorney files c-4 motion to dismiss.
Prosecutor demurrers that the motion is well taken.
JUDGE decides that it is not and believes that at a minimum lesser included charges should remain.
Query: Can the judge at this stage, in the face of a prosecutor not opposing a motion to dismiss reduce the charges?
A couple of thoughts. Many on the listserve we are permanently enjoined from reading or even acknowledging exists, have rightly said that Judges in the United States cannot file charges like, say, judges in Colombia.
BUT we interpose, imagine a scenario at trial where a client is charged with grand theft and all the evidence at trial is that the value of the property taken is $99.99. At the motion for judgment of acquittal stage the judge does not dismiss charges, she reduces them to a misdemeanor and the case goes on for another few weeks as the defense mounts a defense.
So why can’t the erstwhile judge facing the C4 motion do the same thing?
Taking things a bit further, can a judge in state court refuse the prosecutor’s decision to abandon a case and dismiss charges? Because in our scenario, the prosecution did not oppose the motion to dismiss.
Can a judge force a prosecutor to prosecute a case? We think not. Prosecutors exercise their discretion all the time- or at least they claim to- although all we ever hear them say is “victim wants max” and “I have to speak to my supervisor and get permission …”
Going back to our scenario, with second hand knowledge, what we surmise is the prosecutors have a bad case, but afraid of their own shadow or doing anything other than saying “victim wants the max” they punted the case to the judge to grant the motion and dismiss it, and she punted it right back.
Quite the conundrum.