Now the Supreme Court of Virginia has reversed the judgment of the lower court. A threshold issue was whether the Commonwealth could seek pretrial relief from the Supremes in the form of a "writ of mandamus." Ordinarily, pretrial appeals by the Commonwealth are restricted to appeals of suppression orders based on Constitutional violations, orders contravening mandatory sentencing provisions, and adverse bond decisions in certain cases.
Other attempts by the Commonwealth to appeal adverse rulings (such as a trial court sua sponte witholding findings of guilt, imposing punishments on a defendant, and then dismissing the case upon completion of the punishment) have been unsuccessful, because "when the act to be performed involves the exercise of judgment or discretion on the part of the court of judge, it becomes a judicial act and mandamus will not lie.”
So in this case, there was a serious question of whether the VSC would even entertain a motion for a writ of mandamus in the face of a trial judge's purported exercise of discretion in excluding a particular sentence before trial to punish the Commonwealth for violating the Vienna Convention.
The Court traced the history and precedent of writs of mandamus before concluding that mandamus could lie in a case such as this, because the capital sentencing statutes do not allow for exercize of judicial discretion until the jury has found the requisite factors of future dangerousness or vileness. Only after that finding does the Code provide for judicial discretion in imposing either death in accord with the jury recommendation, or life imprisonment. Thus, the VSC concluded:
No statute, however, authorizes Judge Alden to exercise such sentencing discretion in a pre-trial context. In other words, the action taken by Judge Alden was not within her discretion.... The mere fact that Judge Alden made her decision when ruling on a motion does not render the decision discretionary.The Court did not comment on Judge Alden's underlying contention that the Vienna Convention confers judicially enforceable rights. The Court simply ruled that her remedy of pretrial exclusion of a particular penalty was not within her discretion. The writ of mandamus, which seemed to be essentially moribund in Virginia for prosecutors, is still alive.
Furthermore, by directing the Commonwealth’s Attorney that he may not seek the death penalty if Pham is found guilty of capital murder, Judge Alden performed an executive function and exercised discretion that resides solely in the Commonwealth’s Attorney. See Va. Const. art. 3, § 1.
...The discretion of the Commonwealth’s Attorney to choose the offense for which a defendant will be charged includes the discretion to decide whether to seek the death penalty when capital murder is the charged offense.