When his city was hit with a rash of homicides and violent gun crimes in 2012, Hampton Commonwealth’s Attorney Anton Bell said he took a hard look at the kinds of cases his office was working.
He found that more than half the caseload — or about 60 percent — was misdemeanors rather than felonies. Bell said he also considered that marijuana cases typically result in only a $100 fine in Hampton, and that state lawmakers had begun talk of decriminalization.
That’s when he said he decided to stop prosecuting misdemeanor marijuana possession cases.
“I’m wasting resources for something that is potentially not even going to be around, and I still have these violent crimes,” Bell explained. “You’ve only got so many people, and you have to be able to do the cases, so it’s like, which one do you think the public wants? … If I was a private citizen, I would most definitely want you fighting someone with a murder versus a possession of marijuana — all day long.”
Under state law, commonwealth’s attorneys are required to prosecute all felonies in their jurisdictions. But these elected prosecutors often choose to handle many misdemeanors, too, particularly drunk driving cases, sexual and domestic assaults, and any crimes involving children. Meanwhile, traffic cases are typically handled by police officers themselves.
Hampton Vice Mayor Linda Curtis — herself the city’s former longtime top prosecutor — disagreed with Bell’s decision.
“I felt it was a mistake to let these smaller crimes go by the wayside,” she said. “I felt strongly that there are gateway crimes. I’ve always perceived that if you nip that and quickly turn that around, that you are probably saving the system and the community a lot of money in the long run.”
Hampton Police Chief Terry Sult agreed with Curtis, saying that when he arrived in Hampton in late 2013, he was “pretty surprised” to hear prosecutors weren’t handling pot cases.
“That to me was just another message that we were sending to the community that ‘Hey, it’s not important to us, it’s not a big deal’ — part of that decriminalization mindset,” he said.
Sult also cited a “mismatch” in the courtrooms, with lawyers using their courtroom experience to get the cases dismissed, and said officers need to know they have backup if they decide to make a marijuana arrest.
In 2014, after Curtis became vice mayor, she and some other city officials urged Bell to reconsider. But the prosecutor stood his ground, saying his office was overburdened. “I was using my resources appropriately and doing what’s in the best interests of the community,” Bell said. “Violent crime is the priority.”
Bell told city officials that he would do the misdemeanor pot cases if the city paid for an additional prosecutor for his office. But Curtis and the others declined to do so.
As for marijuana and its possible legalization, Bell said that “as a Christian, I don’t drink or smoke … but whatever the law is, that’s what I’m going to uphold.”
He said research now indicates that the “gateway drug” argument — that marijuana leads to harder drugs — is “a theory of the 1990s, and is an obsolete theory.” He also says he has a problem with past misdemeanor marijuana offenses precluding someone from landing a job.
Early on, Curtis said, Hampton police struggled with the cannabis prosecutions, with “a lot of frustration in the department, because their success rate was so low.”
So in late 2014, she led a move on the Hampton City Council to create a new attorney position within the city attorney’s office to take over those cases, with the office handling more than 725 marijuana prosecutions since early 2015.
Soon after Bell’s 2012 decision to back out of misdemeanor marijuana prosecutions, Newport News Commonwealth’s Attorney Howard Gwynn followed suit.
Gwynn did not respond to several requests for comment on this story.
But after years of frustration on the part of the officers, City Manager Jim Bourey said last week that the city recently agreed to fund two new prosecutors — at a salary of about $60,000 apiece — in return for Gwynn prosecuting the marijuana cases again.
Newport News Police Chief Richard Myers said that drug prosecution cases are far more complicated than such traffic cases as, “Did the car go through the red light, yes or no?”
“Defense counsel is always going to be aggressive in carrying out their mission,” Myers said. “But they can get away with things knowing that officers are not attorneys, filing motions and doing things that our officers are not trained to respond to.”
“I would try to throw the train off the track,” local defense lawyer Ron Smith acknowledged, saying that in some cases “the judge becomes the prosecutor,” asking the crucial questions that the officer did not.
Sometimes, Myers said, the defense lawyers file motions at the last minute, often the day before a court appearance. “The arresting officer gets it and has to figure out, ‘Gosh, what am I supposed to do with this?'”
The judge might postpone the case, Myers said, “but by then defense counsel has filed two more motions on different things. There’s a reason people go to law school, right?”
The difficulties led to lots of complaints from officers over the years. “The officers were relaying to us the challenges and difficulties they were having prosecuting these cases and the number of them being dismissed — in the officers’ perspective, quite unfairly — and there was just this sense of, ‘We need help.'”
Of the recent deal by which prosecutors will again handle the marijuana cases, Myers said, “I think it’ll be a real good change.”
Dujardin can be reached by phone at 757-247-4749.
