State Ex Rel. Hamstead v. Dostert

NEELY, Justice,

Opinion concurring in part and dissenting in part:

Again, vox clamantis in deserto. The number of cases in which I have felt required to point out that this court has attempted to answer questions no one is asking grows at an alarming rate. It is axiomatic that hard cases lead to bad law. Unfortunately, the majority seem prone to the formation of bad law even in easy cases. Although I agree with the narrow result in this case that the relator should be released from the local jail, I am in sharp disagreement with some of the dicta surrounding it and the dire implications it would have for professional law enforcement in this State. Furthermore, I am troubled by the author of the majority opinion’s efforts to make law that will cover situations not at all like the case before us but rather related to other concrete factual situations that are not before us. Because the majority opinion makes bad law and because it is itself an affront to the requirement that courts decide only “cases and controversies” presented, I vigorously dissent.

The issue that faced this court today was whether it was proper for a circuit judge to require a prosecutor to seek a particular indictment from a grand jury, to read that grand jury an instruction which improperly stated West Virginia law on homicide, and to jail the prosecutor for failing to comply with his directives. I am in wholehearted agreement with the majority that the circuit judge’s actions were beyond the scope of his authority and that the prosecutor was correct in not seeking a murder indictment and should not have been jailed for criminal contempt. Regarding the rest of today’s opinion, it is hard to determine whether it is more troubling because it is entirely irrelevant or because it is entirely wrong. Because its irrelevance is perhaps the more obvious defect, I will begin with a few comments there.

The reader of today’s opinion will be treated to a discourse on the right of an individual citizen to go to court when he believes a prosecutor has acted improperly. Although I am always pleased to hear of my learned colleague’s unique theories on general issues of jurisprudence, one cannot help but wonder what place such a discussion has in a case that was not brought by a private citizen. This case is before this Court on a habeas corpus petition brought by a prosecutor who was jailed for contempt. As an elected official whose responsibility it is to deal with grand juries, there is no meaningful question as to his standing to raise the issues before us. As an individual who needed to draft his petition from a jail cell, there can be no question of his personal stake. Thus, a reading of the record in this case would make one wonder why the majority feels called upon to lay a foundation for allowing individual citizens to question the actions of prosecutors in a case that raises the question of whether it is proper for prosecutors to question the actions of circuit judges. The answer to that question, of course, is not in the record of this case.

*144 Not only is that detour unnecessary, however, it is clearly and blatantly wrong. The majority reaches a bad result because it starts with an indefensible premise. Syllabus Point 1 of today’s opinion states, “With respect to the determination of whether to seek an indictment and what indictment will be sought in a particular case, the probable cause standard represents the line of demarcation between pros-ecutorial discretion and prosecutorial duty.” That statement is hardly a model of careful draftsmanship. To state that probable cause is “the line of demarcation” does not tell us what it separates. If the majority’s point were that it is not within the discretion of a prosecutor to indict in cases where he does not believe he has probable cause, I would agree. In fact, all of the authorities would see this as an ultra vires act. That does not, however, appear to be the import of the majority’s rule. Instead, they seem to believe that a prosecutor has no discretion but must indict in all cases where he has probable cause. That is not a bad rule; it is a terrible rule!

Even the authority upon which the majority claims to rely points clearly in a direction diametrically opposed to the result this Court reaches today. The majority cites the West Virginia Code of Professional Responsibility 7-103(A), which states: “A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.” [emphasis added]. It is elementary logic that a mandatory standard of omission does not imply that in the reverse situation there is a mandatory standard of commission. If the rule were, “A prosecutor shall not accept bribes from individuals against whom he has probable cause,” it would not follow that, “A prosecutor shall accept bribes from individuals against whom he does not have probable cause.” Yet, the majority states that because prosecutors should never indict when they do not have probable cause they should always indict when they do have probable cause.

Next, the majority cites a portion of the American Bar Association’s Standards for Criminal Justice that states, “A probable cause standard ... is sufficiently minimal that a prosecutor should not err in deciding whether the quantum of evidence is adequate to institute criminal proceedings.” That comment is perhaps best understood in light of the text of the actual standard that states in full:

(a) It is unprofessional conduct for a prosecutor to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.

(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:

(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;

(ii) the extent of the harm caused by the offense;

(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;

(iv) possible improper motives of a complainant;

(v) reluctance of the victim to testify;

(vi) cooperation of the accused in the apprehension or conviction of others; and

(vii) availability and likelihood of prosecution by another jurisdiction.

(c) In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be *145 involved or to a desire to enhance his or her record of convictions.

(d) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that in the jurisdiction juries have tended to acquit persons accused of the particular kind of criminal act in question.

(e) The prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial, [emphasis added]

The comments indicate that the force of this standard is not to place a requirement on the prosecutor but to indicate the necessity of giving him broad discretion. The commentary begins by stating, “The charging decision is the heart of the prosecution function. The broad discretion given to a prosecutor in deciding whether to bring charges and in choosing the particular charges to be made requires that the greatest effort be made to see that this power is used fairly and uniformly. By its very nature the exercise of discretion cannot be reduced to a formula.” [emphasis added]

As the ABA standards contemplate, a requirement that prosecutors indict in all cases in which they have probable cause against a particular individual has serious flaws. Prosecutors’ offices have limited resources and it is frequently necessary for them to make professional judgments concerning the optimal allocation of those resources. It is currently against the law in West Virginia to drive a taxicab with the doors locked and one who is convicted of this crime can be sentenced to up to a year in prison. W.Va.Code, 61-2-17 [1923]. It is also against the law to engage in horse trading within one mile of a state fair, W.Va.Code, 61-6-15 [1923], or to wear a hat in a public theater, W.Va.Code, 61-6-16 [1923]. Because prosecutors must devote the bulk of their time to protecting the citizenry from perpetrators of serious crimes against the person and against property, they do not have the luxury of vigorously prosecuting some of these lesser crimes. Despite this dereliction of duty, I am unaware of any public outcry. Nevertheless, under today’s decision if any single citizen is enraged because he has been temporarily imprisoned in the back seat of a car for hire or is frustrated because his view of a movie screen was obstructed by a baseball cap, he can bring an action requiring the prosecutor to devote precious resources to the prosecution of trivial crimes.

The need for prosecutorial discretion also extends to serious crimes. Prosecutors may also be motivated not to indict in particular circumstances because they believe that the suspect would be more useful as a state witness against others who have committed more heinous crimes. Similarly, a prosecutor may be aware of a possible federal indictment that would carry with it stiffer penalties, but which would be frustrated by principles of double jeopardy if the state prosecutor acted first. Under today’s ruling it is impermissible for a prosecutor to consider any of these highly relevant factors. In imposing judicial supervision on prosecutors the majority raises more questions than it answers. Some of those questions were noted by a federal court in rejecting a writ of mandamus sought by the families of the victims of certain criminal acts to compel prosecution in those particular cases:

At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the [prosecutor] be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? What collateral factors would be permissible basis for a decision not to prosecute e.g., the pendency of another criminal proceeding elsewhere against the same parties?_ With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give cases in which investigation or prosecution was directed by the court?

Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2nd Cir.1973).

*146 The importance of professional judgment in individual cases was forcefully and eloquently underscored in a recent federal case from the Ninth Circuit. Dealing with the extent to which it is proper for judges to interfere with prosecutorial discretion in the area of plea bargains, the court stated:

As a general rule, the existence of discretion requires its exercise. When a court establishes a broad policy based on events unrelated to the individual case before it, no discretion has been exercised. When dealing with issues as fundamental as a person’s freedom or imprisonment, our judicial system must give every case independent consideration.

United States v. Miller, 722 F.2d 562 (9th Cir.1983).

In its zeal to reduce necessarily fact-intensive professional judgment to a simple formula, this court resorts to a level of reasoning that can only be described as primitive. We are treated to an “analysis” of W.Va.Code, 7-4-1 [1971] that sagely reminds us that the meaning of any is “any” and that the meaning of shall is “shall.” All of this is very illuminating. Unfortunately, the majority is somewhat less forthcoming with meaningful definitions for the critical words in that statute which are, “necessary and proper.” An exhaustive analysis of both legal and lay dictionaries reveals no definition of those terms which equates them with the word “indict.” W.Va.Code, 7-4-1 [1971] cannot in any meaningful sense be said to be a statute that gives prosecutors a clear mandate. A statute which says that a public official shall do what he believes is proper in any situation under his authority is hardly a mandatory statute; rather, it is an empowering statute that recognizes the need for discretion in the exercise of that power.

Because the majority is plainly wrong in asserting that prosecutors do not have any discretion in indicting individuals when probable cause exists, the second level of their house of cards — that any citizen has a right to require prosecutors to perform the ministerial function of indicting for criminal offenses — falls of its own weight. In fact, as Justice Marshall has stated, “[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard U., 410 U.S. 614, 619 , 93 S.Ct. 1146, 1149 , 35 L.Ed.2d 536 (1973). In Oyler v. Bowles, 368 U.S. 448 , 82 S.Ct. 501 , 7 L.Ed.2d 446 (1962), a case appealed from this Court, the Supreme Court recognized that, “[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” In fact, one commentator and judge has noted that there have been few cases in American jurisprudence where mandamus has been sought against a prosecutor to force him to indict, and that in those few cases the prosecutor has invariably prevailed. Judge Tim Murphy, “The Relationship of the Prosecutor with the Judiciary”, in Prosecutorial Relationships and Criminal Justice, National College of District Attorneys (J.J. Douglas, Editor, 1977). There is no sound reason for West Virginia to abandon this uniformly accepted principle.

Incredibly, the majority opinion exhibits seemingly blissful ignorance of even its own prior definitive statements of the law on this matter. Today we are told that a citizen has a right to seek a writ of mandamus compelling a prosecutor to prosecute because choosing not to prosecute is beyond his authority. Syllabus Point 9 of State ex rel. Skinner v. Dostert, 166 W.Va. 743 , 278 S.E.2d 624 (1981) on the other hand states, “The decision to move to dismiss or to nolle prosequi a criminal warrant is a proper exercise of prosecutorial authority which may not be invaded by an extra-judicial order.” Because that statement was an actual holding of the Skinner case, while today’s view is clearly dicta expressed in a case that has nothing to do with the rights of citizens to question the actions of prosecutors, I assume that Syllabus Point 9 of Skinner remains the law in this jurisdiction.

The majority opinion also includes a hortatory statement that professionalism on the part of prosecutors in the exercise of their discretion is the best check on prose- *147 cutorial abuse. Although I would agree with that sentiment, it strikes me as an odd pronouncement in a case that goes to such great lengths to limit and in fact to negate any real prosecutorial discretion. The majority’s opinion evinces a clear belief that prosecutors are not capable of exercising discretion professionally and seeks to turn publicly-elected officials into mere ministerial functionaries.

Such a step is not only unnecessary and demeaning to officials who are already politically accountable, it also ignores the long judicial tradition of refusing to interfere with the discretionary decisions of other branches of government. Once again, Miller, supra, speaks with authority and common sense:

Separation of powers requires that the judiciary remain independent of executive affairs. Charging decisions are generally within the prosecutor’s exclusive domain. Prosecutors — representatives of the executive branch of the government — are not mere servants of the judiciary. The tradition of prosecutorial independence is recognized both by case law in the Federal Rules of Criminal Procedure ....

Although courts are free to accept or reject individual charge bargains, they should avoid creating broad rules that limit traditional prosecutorial independence. Generally, courts should be wary of second guessing prosecutorial choices. Categorical limitations on charge bargains may force prosecutors to bring charges they ordinarily would not, or to maintain charges they would ordinarily dismiss as ongoing investigations uncover more information. Such rules thus constitute an impermissible intrusion into what is properly the executive’s exclusive domain.

Chief Justice Burger, hardly a man with a reputation for being soft on crime, recognized the necessity of maintaining a separation between the executive and judicial branches in this area. Writing for the United States Court of Appeals for the District of Columbia in Newman v. United States, 382 F.2d 479, 480 (D.C.Cir.1967), he stated:

Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings or what precise charge shall be made or whether to dismiss a criminal proceeding once brought.

Similarly, in United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 , 85 S.Ct. 1767 , 14 L.Ed.2d 700 (1965), another federal court stated:

Although as a member of the Bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.

Today’s opinion does not stop at telling prosecutors that they must prosecute whenever probable cause exists. It also tells them that they cannot prosecute “in the absence of sufficient admissible evidence to support a conviction.” Thus, prosecutors can never indict , for anything less than the “right” crime, and they can never indict for anything more than the “right” crime. What then, is left of their discretion?

In fact, the standards laid down by the majority today not only eliminate prosecu-torial discretion, they establish a regime in which prosecutors will frequently be faced with contradictory requirements. There is a big difference between probable cause on the one hand and having sufficient admissible evidence to support a conviction on the other. Prosecutors must indict if they have probable cause; but they cannot indict unless they have sufficient evidence to convict. In cases where they have probable cause, but not sufficient evidence to convict, they will inevitably violate one of *148 their alleged statutory duties, as the majority misreads the statutes. Furthermore, under Skinner, supra, a prosecutor who fails to comport with the statutory requirements of W.Va.Code, 7-4-1 [1971] is subject himself to an action under article IX, § 4 of the W.Va. Constitution. In the face of all this, it will hardly be surprising if smart lawyers exhibit a certain hesitancy to enter into public service as prosecutors.

There are other practical problems with the rule this court establishes today. Even if we grant the majority its ludicrous reading of the statute on prosecutorial discretion, the prosecutor’s mandate is that he take action when he believes probable cause exists. However, the majority would allow a citizen to bring an action in mandamus against the prosecutor in any case where that citizen believed the probable cause existed. He would not need to show that the prosecutor was consciously acting in dereliction of his duty. Leaving aside the fact that it would seem far more likely to be within the prosecutor’s competence to determine whether probable cause existed, placing a publicly elected official in danger of being removed in disgrace from his job any time a citizen disagrees with his judgment as to the weight of the evidence in a particular case raises the specter of government by lynch mob. One can imagine numerous cases in which some sectors of the public charge the prosecutor with dereliction of duty because he did not charge a defendant with a severe enough crime, while other public-spirited citizens seek to have him indicted for overzealously bringing any charge at all.

In fact, one need not imagine circumstances at all. The case before this court is illustrative of the problem. The petitioner sought an indictment for involuntary manslaughter in a case where some citizens might have believed that the death should have been treated as accidental. From the judge’s actions, it is apparent that other citizens might believe that a charge of first degree murder was required. Based on his professional experience, the prosecutor reached a decision on firm middle ground. That ground begins to look very shaky indeed when any citizen who disagrees with that judgment can seek an extraordinary remedy that would not only negate the prosecutor’s professional judgment but ultimately lead to his removal from office.

One must also wonder how all of these concerned citizens are going to have beliefs or reasons to believe that prosecutors are choosing or not choosing to indict particular individuals. One of the critical characteristics of the grand jury process is that it is to be confidential. The United States Supreme Court has recognized that, “Unlike an ordinary judicial inquiry, where publicity is the rule, grand jury proceedings are secret.” Levine v. United States, 362 U.S. 610, 617 , 80 S.Ct. 1038, 1043 , 4 L.Ed.2d 989 (1960). Indeed, as early as 1914 West Virginia recognized that, “The law holds inviolate the secrecy of proceedings before the grand jury.” State v. Wetzel, 75 W.Va. 7, 14 , 83 S.E. 68, 71 (1914). Criminal charges are serious matters, and citizens who are targets of grand jury investigations should not be subjected to public denunciation if a grand jury and prosecutor do not find adequate reason to indict. As recently as 1982, the American Bar Association confirmed as one of its fundamental Grand Jury Principles: “The confidential nature of the grand jury proceedings requires that the identity of witnesses appearing before the grand jury be unavailable to public scrutiny.” A.B.A. Grand Jury Policy and Model Act, Principle 21 (1982). The explanatory comments on that principle are illuminating:

Principle No. 21 provides that the confidential nature of grand jury proceedings requires that the identity of witnesses appearing before the grand jury be unavailable to public scrutiny. Shielding their identity is necessary to prevent unjust harm to witnesses and potential defendants. The practice in some jurisdictions of having witnesses exposed to public and press as they emerge from the grand jury room is an unfair one — it taints the witnesses’ reputations by the mere fact that they are appearing. The importance of maintaining the secrecy of grand jury proceedings had already been recognized by the Association, when, in *149 its 1975 policy, it urged strengthened penalties for unauthorized disclosure of grand jury information. The Justice Department in 1977 supported this principle.

If every citizen has a right to bring an action in mandamus to require a prosecutor to indict in cases where that citizen believes probable cause exists, it follows that citizens have a right to know whether the prosecutor is planning to bring an indictment. The only way that information can be made available is to open up grand jury proceedings. Thus, the long-standing principle that citizens are presumed innocent until proven guilty and that individuals’ reputations should not be shattered long before they have ever been charged with any crime is to be sacrificed because of some vague, unarticulated and unsupportable belief that the prosecutors in this state are not doing their jobs.

Of course, prosecutors will sometimes make mistakes. Certainly, they will often make decisions that anger some individual in the community. Inherent in the job is the necessity to make tough judgment calls in cases that people care about, and controversy comes with the territory. Nevertheless, the fact that a particular decision is not universally applauded does not make it an abuse of discretion, and the one principle for which the majority is able to find significant authority is that, “Absent an abuse of discretion, judicial interference with the exercise of prosecutorial judgment as to what charge to bring in a criminal prosecution is impermissible.”

Today’s case is an example of a prosecutor exercising sound professional judgment and integrity in the face of considerable personal duress. To the extent that the majority opinion supports his principled stand, I am in wholehearted agreement. However, it seems to me a grave injustice to use this case as an opportunity to make two other rulings that are unsupportable as principles of law and potentially disastrous as a matter of policy; namely, (1) that prosecutors have no discretion in deciding whether to charge an individual once probable cause exists; and, (2) that any individual citizen has a right to bring actions in mandamus to compel prosecutions.

Those rulings would tie the prosecutor’s hands and make effective law enforcement even more difficult. They would make secrecy in grand jury proceedings impossible and burden the courts with responsibility for listening to unfounded charges from every self-appointed guardian of the public interest in criminal prosecutions. They demean the status of a publicly elected and accountable official and violate principles of separation of powers. That the majority would err so badly on issues that were not even raised by the case before it is the most effective argument I have yet heard for judicial restraint.