The Court of Appeals for District 4 decided in State & T.A.J. v. Alan S. Johnson, 2019AP664-CR, 10/29/20 (recommended for publication) that “Marsy’s Law” gives a crime victim standing to get involved in Shiffra-Green litigation. This decision is in conflict with well established case law which defines the role of a public prosecutor in a criminal case and why a private attorney cannot assist in a criminal prosecution.
The role a prosecutor plays in a criminal case has long been clearly established. Ethically, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” SCR 20:3.8. Special responsibilities of a prosecutor, ABA Comment . Thus, a prosecutor is not like an ordinary party to a case. Unlike a private party’s attorney, a prosecutor is an:
independent administrator of justice in the criminal justice system, which can only be accomplished through the representation and presentation of the truth. The primary responsibility of a prosecutor is to seek justice……A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client. A prosecutor should put the rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases. National Prosecution Standards, 1-1.1 and 1-1.2. National District Attorneys Association (Third Edition Updated 2009). Emphasis added. See also ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION standard 3-2.1, at 19 (3d ed. 1993) (“[t]he prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of professional conduct and discipline.”); Neil M. Peretz, The Limits of Outsourcing: Ethical Responsibilities of Federal Government Attorneys Advising Executive Branch Officials, 6 CONN. PUB. INT. L.J. 23, 35-36 (2006) (discussing higher ethical burden on prosecutors to preserve justice)
A public prosecutor has the power of the State behind her. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987) (“[The prosecutor] has the power to employ the full machinery of the state in scrutinizing any given individual.”). This makes a criminal prosecution an exercise in state sovereignty. See, e.g., JONATHAN SIMON, GOVERNING THROUGH CRIME 33 (2007) (noting nexus between law enforcement, prosecutorial authority, and sovereign power); PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT 14 (2007) (“[S]overeignty is the exercise of power by the state.”).
Prosecutors are public officials who serves not a private party but the interest of the sovereign. Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980). See also, Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 LAW & SOC. INQUIRY 387, 390 (2008) (prohibitions of criminal law represents a “fragment of sovereignty.”). A prosecutor is not the servant of any one citizen but is a “servant of the law” whose obligation is not to win a case but see “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). With the awesome power of the State at their disposal in the prosecution of a case, “those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice.” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987). Even private attorneys appointed to prosecute a criminal case are representatives of a private party but is a representative of the State. Id. at 804.
Thus, in Wisconsin it is wrong to put a defendant on trial by the district attorney with the assistance of another individual. A person accused of a crime involving his confinement cannot be tried by the use of private parties as prosecutors. The fact that a private party was paid to aid the district attorney warrants a new trial. Biemel v. State, 71 Wis. 444; 37 N.W. 244 (1888):
public policy, and the fair, just, and impartial administration of the criminal law of the state, make it the duty of the courts to exclude the paid attorneys of private persons from appearing as prosecutors. That public policy is against permitting them to prosecute. Id at 446. See also, State v. Eldridge, 951 S.W. 2d 775, 782 (Tenn. App. 1997) (private attorney who represented victim in civil matter could not serve as special prosecutor since this violates due process); Cantrell v. Virginia, 329 S.E. 2d 22 (Va. 1985) (private attorney who represented victim’s parents seeking custody of father who was defendant assisted public prosecutor presents overwhelming probability of a conflict of interest)
Biemel recognized, as did Young, Eldridge and Cantrell that there is a clear opportunity for interested private counsel to base prosecutorial decisions on a private party’s best interests and not on the public’s best interests.
An example of the problem created by a private party acting as part of the prosecution is illustrated by the story of Tobias E. Diamond, who was both a private attorney and the United States Attorney for Iowa. He resigned his position in November 1952. After unsuccessfully settling a claim that his client had against a Florida company, Diamond obtained a grand jury indictment against the company and two of the company’s officers. See House Probers Told Justice Dept. Denounced U.S. Attorney with $67,000 Private Practice, WASH. POST, Dec. 18, 1952, at 9; Murrey Marder, Justice Aide Quits During Investigation — Iowa U.S. Attorney Probed for Alleged Outside Practices; Second in Month, WASH. POST, Nov. 8, 1952, at 1. Based on what happened Tobias E. Diamond, the Justice Department prohibited outside law practice by its attorneys. See Luther A. Huston, M’Granery Limits Aides’ Activities — 15,000 in Justice Department May Not Do Outside Work Interfering with Duties, N.Y. TIMES, Dec. 19, 1952, at 25.
And that’s why a private attorney cannot serve as a public prosecutor.