A three-judge appellate panel has overruled Territorial Court Judge Ive A. Swan's refusal to dismiss a criminal case against a St. Thomas man originally charged with second-degree rape.
The panel — composed of District Judges Thomas K. Moore and Raymond L. Finch and Territorial Court Judge Edgar Ross — said Swan's refusal to grant the attorney general's motion to dismiss "was patent error," a "clear abuse of discretion" and "an impermissible usurpation" of executive branch authority.
The judges also threw out a Territorial Court rule that would have protected Swan's refusal to dismiss the charges, saying that Presiding Judge Verne A. Hodge overstepped his rule-making power and violated the constitutionally guaranteed powers of the executive branch.
The rulings came in a complicated case brought by Leroy Richards, who originally was charged with second-degree rape of a 15-year-old girl. The Attorney General's Office later attempted to drop the charges, saying it could not prove them and telling the court that the girl and her mother were refusing to cooperate with any prosecution.
Swan refused to drop the charges. And on the day Richards filed his petition with the District Court to overrule Swan, the Territorial Court amended a rule to say, in part: "No criminal case filed in the court, including traffic citations, shall be dismissed upon motion by any party except upon a determination by the court that the dismissal is in good faith, in the public interest, and in the interest of justice."
That, said the appellate judges, "imperils the constitutionally mandated separation of powers between two co-equal branches of our local government, the judiciary and the executive."
In fact, the opinion says, the amended rule "would make the attorney general a functionary of the Territorial Court in the prosecution of criminal cases."
The executive branch "prosecutes and the judiciary adjudicates," the judges wrote. "A Territorial Court judge has no authority to order the attorney general of the Virgin Islands to continue the prosecution of a criminal case in this territory."
And, noted the judges, "Under our system of constitutionally balanced powers, each co-equal branch must respect the integrity of the others."
In addition to dismissing the government's case against Richards, the panel also ordered his attorney, A.J. Weiss and Associates, to show cause why it should not be held in contempt for failing to show up at the final hearing to argue Richards' case.
Appeals from the Territorial Court are decided by a three-judge panel made up of the territory's two District Court judges and a Territorial Court judge from the other district than the judge whose order is being appealed. Appellate division decisions can be appealed to the 3rd Circuit Court of Appeals.
