Journal Issue Date: July/August 2020
Journal Name: Vol. 56 No. 7
In Tennessee, is there ever a time when a prosecutor would not be allowed to dismiss a case after indictment? Politics aside, the controversy over the United States Department of Justice’s motion to dismiss the case against Michael Flynn presents important issues regarding the scope of authority between prosecutors and courts. Can prosecutors always dismiss criminal cases? If not, why not? Can the court force a prosecutor to proceed with a case the prosecutor wants to dismiss? After looking at the Flynn filings, I wondered whether controversies like this happen in Tennessee, and under what circumstances. I wanted to know how the power struggle plays out in less high profile but more practical circumstances. As it turns out, there have been controversies in Tennessee regarding a prosecutor’s right to dismiss a case. The result sheds like on the role of the executive and judicial branches.
Photo: Gage Skidmore
Prosecutorial Discretion and Its Limits
Generally, a United States Attorney’s Office or District Attorney’s Office has discretion about whom to prosecute. In the past, this was a purely executive branch decision. If a prosecutor wanted to drop a case, that was the end of the case.
With the adoption of the various rules of criminal procedure, certain limitations were imposed on that discretion. Tennessee Rule of Criminal Procedure 48(a) provides that “[w]ith the court’s permission, the state may terminate a prosecution by filing a dismissal of an indictment, presentment, information, or complaint.” The rule further provides that the State cannot dismiss during trial without the defendant’s consent.1
Federal Rule 48(a) contains the same restriction about not dismissing during trial without the defendant’s consent and provides that the government may dismiss “with leave of court.” When a defendant does not consent, the normal adversary system should take care of making the record of whether there is some reason that the court should not grant leave to dismiss. For example, if a defendant was ready for trial and the prosecution was not, the government might try to dismiss for a tactical reason. In that case a bold defendant might object (although it would be rare to object to any form of dismissal?). But when the prosecution and defense agree that a case should be dismissed, how can a court refuse to dismiss the case? Obviously, there is no potential prejudice to the defendant.
In the Flynn case, both the government and the defendant have taken the position that leave of court should only really come into play if the defendant objects or if some action is necessary to protect the rights of the defendant. Because both parties agree here, they argue the court should have no role other than signing off on the order of dismissal. District Judge Emmet Sullivan, however, argues that he is required to determine whether the dismissal protects the public interest and that the district court is not just a rubber stamp.2
Although there is United States Supreme Court dicta to the effect that the rule was meant to protect defendants, persuasive arguments have been made that the purpose of the rule was never simply to protect defendants, but also to protect the public. The history and debates surrounding the adoption of the rule show that a primary purpose of the federal rule was to grant the court the authority to intervene if it appeared that a prosecutor was dismissing a case for political or improper purposes.3
So, let’s look at the practical effect in Tennessee. As it turns out, the Tennessee Supreme Court has addressed the very issue of a trial court’s role when both parties agree to dismissal. In State v. Layman, 214 S.W.3d 442, 448 (Tenn. 2007), the court looked at two different situations in which a trial court had rejected the state’s bid to dismiss more serious charges in order to make the defendant eligible for a diversionary disposition. Both sides agreed the disposition was appropriate. But the trial court rejected the dismissal of the more serious charge as not being in the public interest. The Tennessee Supreme court first reminded us that under the common law the decision was entirely up to the prosecutor.4 Although Rule 48(a) adopted the language requiring the “court’s permission,” the court pointed out that the rule provides no criteria for determining whether to give that permission.5 The court looked at previous cases using the term “manifest public interest” to determine when a trial court should reject a motion to dismiss and in Layman further defined that phrase. The bottom line is that the trial court’s power should only be used to reject an agreed dismissal when it would amount to a betrayal of the public interest, such as a decision based on acceptance of a bribe or personal dislike of the victim. State v. Layman, 214 S.W.3d 442, 451 (Tenn. 2007). While it likely exceedingly rare that a case would be dismissed for an improper purpose, it seems like the right balance for the trial court to have the authority to step in under those circumstances. The court held that the trial courts had abused discretion in denying permission to dismiss because the dismissals were based on an evaluation of the facts of the cases and did not violate the manifest public interest.6
As a practice pointer, I would say that Layman is even more important now. The underlying issue was whether the state could dismiss more serious charges in order for the defendant to qualify for diversion. Since then, the diversion statutes have become more restrictive. Fewer offenses are divertible. Layman makes it clear that it can be perfectly proper for a district attorney’s office to dismiss a charge that would make the defendant statutorily ineligible for diversion.
What happens much more often is for a trial court to reject a plea agreement that the state has offered. This does not implicate separation of powers nearly as much as the decision about whether to prosecute or dismiss a case because sentencing is traditionally a judicial function.7 Still, there are limits on when a trial court can reject a plea agreement. A trial judge must evaluate the facts of the particular case and exercise discretion using sound legal principles.8 In exercising discretion on a plea agreement, however, the trial court has the authority to take into account what the judge thinks the fair result should be. There is no requirement that the state is operating in bad faith. The trial court, for example, can reject a plea agreement because the punishment is too lenient.9
The facts of the Flynn case might be more high profile than the Tennessee cases, but our rules of Criminal Procedure and the Tennessee Supreme Court’s interpretation create a balance that respects prosecutorial discretion and can protect the public from rare misconduct.
WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.
1. T. R. CRIM. P. 48(a)(emphasis added).
2. In re Michael T. Flynn, United States Court of Appeals for the District of Columbia Circuit, No. 20-5143, Doc. 1845144, page 31 of 46. Normally I would wait until a case is resolved before writing about it, but the result in Flynn does not really impact what happens in Tennessee courts.
3. Frampton, Thomas, “Why Do Rule 48(a) Dismissals Require ‘Leave of Court’?” (May 13, 2020). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3599674. Frampton has been quoted several times in the Flynn briefing.
4. State v. Layman, 214 S.W.3d 442, 448 (Tenn. 2007).
6. Id. at 453.
7. Id. at 452 (citing State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)).
8. State v. Hawkins, 519 S.W.3d 1, 40 (Tenn. 2017).
9. State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995).
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