Commonwealth's attorneys are just too Damn powerful!

So says the ACLU of Virginia. Imagine that.

ACLU issues report on commonwealth's attorneys

“Unparalleled Power," a 32-page report, says that commonwealth’s attorneys - the top prosecutor in 120 Virginia localities - ran uncontested for office in 72 percent of elections from 2005 to 2015. Forty percent of the offices did not have a single contested race during that period, the study found.

"Local, elected prosecutors in Virginia hold tremendous influence over the criminal justice system but face few challenges to their authority," according to the ACLU.

Prosecutors, however, strongly disagree with much in the study.

The report says that once elected, local prosecutors often stay in office for decades "wielding broad discretion in how cases are handled while also lobbying aggressively against reforms to the criminal justice system that polls show the public supports."

"Several local (commonwealth's attorneys) have held the same office for more than 40 years, with one in six having been in office for more than 20 years," says the report.

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Perhaps user can critique this report.

That report would apply to any state. If our founding fathers thought this would have happened they would have term limited every elected position.

color of law said:

That report would apply to any state. If our founding fathers thought this would have happened they would have term limited every elected position.

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I forget which book I read. It related that in colonial America, crime victims prosecuted their own case against the perp. (The book didn't say so, but I presume a victim could hire an attorney to do the prosecuting for him.)

The book didn't say so, and I've seen alternate explanations, but look at the word: prosecutor. Pro se cutor. Pro se in Latin means for self. It still means that today in law. If you represent yourself as a defendant at trail, you are represented pro se. Locution relates to speaking. A locutor in Latin is a speaker, deriving from loquos--to speak.

The book explained that state prosecutors in colonial times only involved themselves in the most serious crimes--rape, murder, etc. Everything else, the victim prosecuted the defendant himself, or as I presumed above, hired an attorney to prosecute for him.

Somewhere along the way, the state prosecutor was either handed, or arrogated to himself, the power to prosecute everything. And, somewhere along the way he obtained immunity for his official acts while in office, rationalized with the absurdity that a prosecutor cannot be effective if he has to worry about being held accountable for wrongful prosecutions (anytime the defendant is found not guilty, it could be sued as a wrongful prosecution).

Context provides the clue. That is to say, you cannot really evaluate a piece of information unless you have a second piece of information to which you can compare it. In this case, there is a second piece of information. It comes from history. Thus, my comment about context--in this case historical context. In ancient Rome, a criminal prosecutor was a private attorney. And--get this--if he lost the case by the jury finding the defendant not guilty, the prosecutor was branded on the forehead for bringing a false case. Woah!! You know--you knowwwwwww!--that any attorney made very darn sure he had a ton of evidence that proved beyond any shadow of doubt the defendant was guilty before he took on the case.

But, not today. That is how far we've allowed government to slide. Nifong's disbarrment (Duke Lacrosse prosecutor) was a rarity. Prosecutors today can count on not being held even accountable, much less personally liable, for their actions unless so totally, provably egregious. Meaning, personal animus and political ambition are totally available as factors in their decision to prosecute someone, instead of facts and rational conclusions. Heck, even if they withhold exculpatory evidence, the worst they suffer is a criticism by an appeals court vacating the conviction. "Oh, snap! I have to prosecute the case over again--while getting paid with taxpayer money. Dang. Darn."

Citizen said:

I forget which book I read. It related that in colonial America, crime victims prosecuted their own case against the perp. (The book didn't say so, but I presume a victim could hire an attorney to do the prosecuting for him.)

The book didn't say so, and I've seen alternate explanations, but look at the word: prosecutor. Pro se cutor. Pro se in Latin means for self. It still means that today in law. If you represent yourself as a defendant at trial, you are represented pro se. Locution relates to speaking. A locutor in Latin is a speaker, deriving from loquos--to speak.

--snipped--

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Excellent use of etymology to demonstrate the real meaning of a word AND give credence to the discussion.

I'm not sure that I see a real solution anytime soon to the sticky problem of prosecutors having way too much power, though. Thoughts?

Grapeshot said:

Excellent use of etymology to demonstrate the real meaning of a word AND give credence to the discussion.

I'm not sure that I see a real solution anytime soon to the sticky problem of prosecutors having way too much power, though. Thoughts?

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The qualified immunity doctrine protects government officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
https://supreme.justia.com/cases/federal/us/457/800/case.html

The court created qualified immunity. Yes, the three branches of government conspired to protect themselves from the people.
The supreme court is no different than the president signing executive orders, they create law out of thin air.

A few years ago our courthouse installed bullet proof glass in certain parts of the courthouse that serves the public. Message, they are afraid of the people. And they should be.

Private citizens prosecuting crimes has been outlawed by the courts. The United States Supreme Court has quashed the right of private prosecution in federal court. Under Leeke v. Timmerman, (1981), 452 U.S. 83, the Court affirms the precedent in Linda R.S. v. Richard D., (1973) 410 U.S. 614, which denies the right of private prosecution, and serves as a bar to criminal prosecution in federal courts by persons not federal government employees. This is also true in most states.

The courts have said you don't have no constitutional rights unless we say so.......

color of law said:

--snipped--

the courts have said you don't have any constitutional rights unless we say so.......

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fify.

color of law said:

The qualified immunity doctrine protects government officials from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
https://supreme.justia.com/cases/federal/us/457/800/case.html
<snip>

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Immunity (full or qualified) is a fascinating legal subject. Most all states make this an affirmative defense (as one can waive immunity, it must be plead).

And not all states have the same rules. Some states see all activities of a gov't employee to be part of the employee's work whereas some states see illegal activity of an employee to be outside the scope of the employee's work (making an immunity claim void).

I recall filing one case in a small claim court against a federal employee ... the feds come in and sweep it up to federal court ... then the fun started. FBI & Treasury agents showing up at my work and home just for filing .. the federal judge chastised the gov't attny for this and of other illegal activities related to the case...over and over. So I know all about immunity issues....I had no problem in my case.

Citizen said:

I forget which book I read. It related that in colonial America, crime victims prosecuted their own case against the perp. (The book didn't say so, but I presume a victim could hire an attorney to do the prosecuting for him.)

The book didn't say so, and I've seen alternate explanations, but look at the word: prosecutor. Pro se cutor. Pro se in Latin means for self. It still means that today in law. If you represent yourself as a defendant at trail, you are represented pro se. Locution relates to speaking. A locutor in Latin is a speaker, deriving from loquos--to speak.

The book explained that state prosecutors in colonial times only involved themselves in the most serious crimes--rape, murder, etc. Everything else, the victim prosecuted the defendant himself, or as I presumed above, hired an attorney to prosecute for him.

Somewhere along the way, the state prosecutor was either handed, or arrogated to himself, the power to prosecute everything. And, somewhere along the way he obtained immunity for his official acts while in office, rationalized with the absurdity that a prosecutor cannot be effective if he has to worry about being held accountable for wrongful prosecutions (anytime the defendant is found not guilty, it could be sued as a wrongful prosecution).

Context provides the clue. That is to say, you cannot really evaluate a piece of information unless you have a second piece of information to which you can compare it. In this case, there is a second piece of information. It comes from history. Thus, my comment about context--in this case historical context. In ancient Rome, a criminal prosecutor was a private attorney. And--get this--if he lost the case by the jury finding the defendant not guilty, the prosecutor was branded on the forehead for bringing a false case. Woah!! You know--you knowwwwwww!--that any attorney made very darn sure he had a ton of evidence that proved beyond any shadow of doubt the defendant was guilty before he took on the case.

But, not today. That is how far we've allowed government to slide. Nifong's disbarrment (Duke Lacrosse prosecutor) was a rarity. Prosecutors today can count on not being held even accountable, much less personally liable, for their actions unless so totally, provably egregious. Meaning, personal animus and political ambition are totally available as factors in their decision to prosecute someone, instead of facts and rational conclusions. Heck, even if they withhold exculpatory evidence, the worst they suffer is a criticism by an appeals court vacating the conviction. "Oh, snap! I have to prosecute the case over again--while getting paid with taxpayer money. Dang. Darn."

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Private prosecution is still legal - it hasn't been abolished by statute; but attempting to do so would be extremely difficult. I only know of one actual attempt and the CW was so unhappy about it! The procedures for issuing summonses and warrants, and getting in front of a grand jury to get an indictment issued are all controlled by the CW either directly or indirectly, and it would be nearly impossible to do it.

I agree with the ACLU's conclusions. They're really limited in some respects and one could sue them for malfeasance in office (they're immune from most suits) but you can imagine how that would go over. Anyone who runs against them would be risking retaliatory action. Anyone who practices criminal defense can expect never to be able to discuss plea deals and punishment of clients by excessive harshness and "working to the rule" if he speaks out against a local Cw. I basically don't care, but that's only because I'm not tied to anyone one jurisdiction - I seldom appear in any one court more than once a year or so, and most are less frequently. But I'm the only lawyer I know who gives 'em as much as they give others. Anyone tied to local courts has to treat the CW with great deference. If you want to know what effect that has on prosecutions should go to the local General District Court one day and sit in on the traffic and misdemeanor docket.

My opinion is that we should be a lot more careful about election of Commonwealth's Attorneys - they should be subject to strict scrutiny and replaced often. They have great power, but we're the ones who give it to them.

user said:

SNIP Private prosecution is still legal - it hasn't been abolished by statute;

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Its funny how some things carry over for long periods of time.

For example, Henry II was the first to send his royal judges on circuit around England (1165 AD or thereabouts). Up until then, trial by ordeal and trial by battle at the manor of the lord were the practice. All at once you had the option of rational basis (sort of) being used to determine your guilt or innocence, avoiding the painful ordeal (e.g. carrying a burning hot piece of iron in your hand) or risking death in trial by battle. You got to avoid that stuff when the king's judges appeared. But, the accused had to request/consent to be tried by a royal judge.

Now, funny thing. In 1381, about 200 years after Henry's judges started offering an alternative to trial by ordeal and battle, the southeast of England burned. The Peasants Revolt. Furious about taxes and abuse, the common folk rose up, killed the treasurer of England and the Archbishop of Canterbury. They successfully invaded the Tower of London (people figure sympathetic guards left the gates unlocked). Well, in the moment of highest crisis, the 14-yr old king King Richard II rode forward alone and handled most of the peasants by promising to meet their demands, leaving only the now-outnumbered hardcore who lost the next fight. The government then hunted down the leaders of the rebellion. One was an ex-soldier. He opted for trial by battle. Yep, two hundred years after Henry II's judges, trial by battle was still a legal option for a defendant.

In Tudor England, four hundred years after Henry II's judges, some people accused of religious crimes were pressed under heavy weights to force them to plead to (an indictment). This was not torture to get them to confess to a crime. The government did not care whether the accused pled guilty or not guilty--the government just wanted a plea. Thus, some were shackled to the floor, had a plank or door laid on them, and then progressively more and more heavy weights laid on the door. At least one woman refused to plea and died from being pressed. Now, why on earth would government need a plea so, so bad, that it would use torture to force a person to plead? Why not just enter a plea for him, try him, and convict him on distorted evidence or false testimony? How could an actual plea be so important that torture was on the table? My reading has not answered that. But, I can estimate. Remember that I wrote above that in order to enjoy being tried by one of Henry II's royal judges, the defendant had to request/consent to the royal judge? It is not a big leap for consent in the 1100's to evolve into a plea in the 1500's.

Side Note: Imagine how precarious the government's power if it could not try someone without their consent in the 1100's, or their plea in the 1500's, compared to today. The government in the 1500's didn't dare just up and try someone--it needed a plea. Badly enough to use torture. Imagine the view of free Englishmen, as estimated by the government, if proceeding to trial without a plea was worse than using torture to obtain the plea.

Citizen said:

Its funny how some things carry over for long periods of time. ...

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I would suggest that you take a look at Va. Code sections 1-200 and 1-201, particularly with reference to the part about being "repugnant" to the Constitutions and laws that obtain in Virginia.

Citizen said:

Side Note: Imagine how precarious the government's power if it could not try someone without their consent in the 1100's, or their plea in the 1500's, compared to today. The government in the 1500's didn't dare just up and try someone--it needed a plea. Badly enough to use torture. Imagine the view of free Englishmen, as estimated by the government, if proceeding to trial without a plea was worse than using torture to obtain the plea.

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What? Where did that come from? We try people without their consent all the time, that's what usually happens, and if they don't want to enter a plea, the court will enter a plea of 'not guilty' and try them anyway. I really have no idea where that comment is coming from.

user said:

What? Where did that come from? We try people without their consent all the time, that's what usually happens, and if they don't want to enter a plea, the court will enter a plea of 'not guilty' and try them anyway. I really have no idea where that comment is coming from.

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I was pointing out, expressed as a side note, the power of the people vs government today, compared to years past. On the one hand, it is a bit surprising--to me anyway. I considered "the king" to be pretty much all powerful, his whim law. Then I find out Henry II had to send royal judges into the countryside to increase his power. What? Wait a minute. Increase his power? Meaning, he wasn't all-powerful already? And, although he directed his judges to take control of trials, the defendant still had to request/consent to be tried by the royal judge? Whoa!! Wait a minute! What was the on-point common law at that time?--and remember, this was before Magna Carta. And, why would a Norman king bow to that common law? (Certainly, Henry II bashed and forced in other areas.) But, why would a Norman king--a Norman king, of all things--be deterred on this point--consent to be tried by a royal judge?

And, why torture to extract a plea in Tudor England? Oh, ho, ho. The people and their common law must have been pretty powerful to make the govern-ers conclude that torture was less disreputable than proceeding to trial without a plea. And, lets not forget: that torture went unto death. They were literally willing to kill to try to extract a plea.

These are all side-note hints that the relationship between the people and the government has changed.