In the final days of 2020, the ACLU of Virginia filed an amicus brief in the case of Commonwealth of Virginia v. Harwinder Sangha in the Circuit Court of Fairfax County, which invited amici to address whether the Circuit Court should proceed with a misdemeanor trial even though the Commonwealth Attorney for Fairfax County, Steve Descano, had decided he would not—and could not ethically—dedicate valuable prosecutorial resources toward low-level misdemeanors such as the one in this case, given the sheer number of criminal cases his office handles.

In its amicus brief, the ACLU of Virginia argues that trying Mr. Sangha in the absence of a prosecutor would require the judiciary to take on responsibilities that are fundamentally reserved for the Commonwealth Attorney—such as determining whether to prosecute, and cross examining the defendant—violating separation of powers and making it nearly impossible for the court to maintain the impartiality required to fairly adjudicate the case. Nor can the judge avoid constitutional concerns by relying on the presence of the complaining witness police officer, who will often have an interest in obtaining a conviction that is at odds with the prosecutor’s ethical duty to seek justice.

In this amicus brief, the ACLU of Virginia urged the court to dismiss Mr. Sangha’s summonses instead of acting as de facto prosecutor.


Vishal Agraharkar and Eden Heilman, ACLU of Virginia

Date filed


Circuit Court of Fairfax County


Richard E. Gardiner



Case number

MI 2020-565