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Home , Malfeasance in office, Nolle prosequi

Journal of Criminal and Criminology

Volume 48 | Issue 4 Article 8

1958 Legal Methods for the Suppression of Organized (A Symposium) Arthur Buller

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Recommended Citation Arthur Buller, Legal Methods for the Suppression of Organized Crime (A Symposium), 48 J. Crim. L. Criminology & Sci. 414 (1957-1958)

This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. CRIMINAt LAW CASE NOTES AND COMMENTS

Prepared by students of Northwestern University School of Law, under the direction of the student members of the Law School's Journal Editorial Board. Arthur Buller, Editor-in-Chief Arthur Rollin, Associate Editor Marvin Aspen Jay Oliff Malcolm Gaynor Louis Sunderland Ronald Mora Howard Sweig

LEGAL METHODS FOR THE SUPPRESSION OF ORGANIZED CRIME (A SYMPOSIUM)

Organized crime is a vital problem in the "The Use of Equitable Devices to Suppress field of law enforcement. Because of the nature Organized Crime", will consider the mechanics of its various forms of activity, the suppression and availability of the use of the injunction and of organized crime presents difficulties not other equitable remedies where the usual legal ordinarily encountered in other areas of criminal remedies have proved inadequate. The fifth and conduct. In this and subsequent issues of the concluding paper, "Indirect Control of Organized Journal, a series of articles will examine these Crime Through Liquor License Revocation", will problems and the legal remedies available for examine this tactic as a substitute for direct their solution. criminal prosecution. The existence of organized crime in any com- Warren L. Swanson* munity requires the co-operation of the local Legal Remedies Against Corrupt Law police or . The legal methods for the prosecution or removal from office of such cor- Enforcement Officers rupt officials will be discussed in the first paper ARTHUR BULLER of the present symposium: "Legal Remedies The chief source of revenue for organized Against Corrupt Law Enforcement Officers". crime is gambling.' This form of vice requires Where the primary law enforcement officials public patronage; for this reason, the police fail to perform their duties, effective methods of generally are aware of the existence of such enforcement must be found. This problem will illegal activity.2 The public will not patronize be analyzed in the second and third papers: gambling houses unless there is some assurance "The Investigative Function of the Prosecuting of freedom from interference by the police. Attorney"; and "Circumventing the Corrupt * Editor-in-Chief, Criminal Law Case Notes and Prosecutor: Supercession by the State and the Appointment of a Special Comments, 1956-57. Now Teaching Associate, The Prosecutor." Northwestern University School of Law. papers published as part of this symposium were corruption, Apart from the problem of official prepared under Mr. Swanson's direction. the usual forms of criminal prosecution often 'Senate Special Committee to Investigate Or- have been found ineffective in permanently ganized Crime in Interstate Commerce, Third eliminating organized gambling and vice. Interim Report, S. REP. No. 307, 82d Cong., 1st Alternative devices must therefore be employed. Sess.2 2 (1951). The fourth of the symposium paper, entitled Id,at 184. 19571 CRIMINAL LAW CASE NOTFS AND COMMENTS

6 Consequently criminal elements have centered the . The actual application of this discre- their activities mainly in those areas in which tion to a particular case is controlled neither by they have achieved, or are able to achieve, law nor by the ;7 the prosecutor selects official immunity from legal process. The basic the person and the time to prosecute.8 problem thus presented is how to sever this 6 An example of the difficulty corrupt connection betweep law enforcement encountered by the courts in trying to pin down the legal meaning of officers and organized crime. the word "discretion" is found in State v. Wallach, The corrupt official, from the public prose- 353 Mo. 312, 182 S.W.2d 313 (1944). The cutor to the policeman on the beat, is subject to there ascribed to the prosecutor the discretion to penal sanctions for in office, a "act officially in such circumstances, upon each criminal offense, and to a civil removal action separate case, according to the dictates of his own where he has failed to perform the obligations judgment and conscience uncontrolled by the of his office. The fundamental obligations of law judgment and conscience of any other person, such enforcement officials have been divided into discretion to be used in accordance with established two classifications: discretionary duties and principles of law... 2' Query, if the prosecutor ministerial duties, with different standards for must act in accordance with "established prin- ciples of law," is it really true that he can act upon each. A determination of the remedies available each case guided by his own judgment and con- against a particular official, including the prose- science and without outside influence? cutor himself, requires a consideration of the The Wallach case highlighted another difficulty character of his functions, i.e., whether they are in this matter of discretion. The court said that the discretionary or ministerial. prosecutor may in good faith (but not arbitrarily) exercise his discretion with respect to when, how and NATURLE OF = PROSECUTOR'S OFFICE against whom to initiate criminal proceedings. When is performance, or the lack of it, in good Since the foremost obligation of the prose- faith; or the converse, when does it indicate bad cutor is to enforce the law through prosecution faith, or arbitrariness? of its violators, if the criminal elements can Where a prosecutor was shown to have failed control his office, they are in a position to completely in commencing any prosecution for 3 frustrate such enforcement. Under the various violation of gambling laws, even after having full state , the prosecutor theoretically information about the conditions, it was held that should use the machinery of his office whenever he had been guilty of bad faith and arbitrariness in he has reason to believe that have been the use of his discretion. The court found that "He committed by particular individuals.4 As a had made no effort whatsoever to perform his practical matter, however, his obligation to duties as prosecuting attorney" and that he "never initiate prosecution is discretionary. 5 In other reached the point of even pretending to exercise discretion." McKittrick v. Wymore, 345 Mo. 169, words, the prosecutor, in the exercise of his 132 S.W.2d 979, 986 (1939). In McKittrick v. general duty of prosecuting violators of the law, Graves, 346 Mo. 990, 144 S.W.2d 91 (1940), it was has a very broad, vaguely limited discretion to held that the prosecutor-defendant wilfully and un- pursue that course of action which seems right lawfully failed to properly enforce liquor control to him under the circumstances. His discretion laws, where there was continuous long existing apparently is not subject to review so long as it conditions of flagrant and notorious gambling, is founded upon a good faith effort to enforce , and illegal sale of intoxicating liquor, frequently commented upon by the press. The 3See Ploscowe, ORGANIZED CRIME A.-NDLAW prosecutor had made no to prosecute, ENFORcEMENT, 217 (1952). claiming that, since the police did not attempt any 4 Id, at 218. enforcement, he was excused from doing so. 5 See People v. Pollach, 25 Cal. App. 440, 77 7See, e.g., Leone v. Fanelli, 87 N.Y.S.2d 850 P.2d 885 (1938); v. Thompson, 251 (1949). In the Fandli case, an attempt was made to U.S. 407 (1920); United States v. Brokaw, 60 F. compel the local district prosecutor to "forthwith Supp. 100 (S.D. Ill. 1945); District of Columbia v. and diligently prosecute the against one Buckley, 128 F.2d 17 (D.C. Cir. 1942). Frank Smith ...... The court pointed out that it was CRIMINAL LAW CASE NOTES AND COMMENTS (Vol. 48

In formulating his decision whether or not to the strongest possible case. A problem is pre- prosecute, the prosecutor may be influenced by sented, however, where the prosecutor has one or more of the following considerations: merely a complaint that a crime has been com- Will prosecution be a waste of time? Will it be mitted, or that some individual or group is unduly expensive to the state? What are the carrying on a particular form of criminal ac- chances of obtaining conviction? Are there tivity. The question thereby presented resolves extenuating circumstances? Will there be un- itself into two alternatives: 1) Is the prosecuting favorable political reverberations, both as to attorney only a lawyer for the state who pre- himself and his party or associates? Was the law sents to a court or grand the ob- that was violated an "undesirable" one? If the tained by others concerning the crime and the offender is a friend, the prosecutor may feel an alleged guilty?; or 2) Does he have the broader indictment a poor way to repay friendship.9 duty of independently gathering the evidence?" Though not all of these considerations are Unfortunately, most state statutes fail to assign proper elements of discretion, they are of such a to the prosecutor any precise duties in the insti- personal nature as motivating factors that their tution of criminal investigations. 2 The haziness presence in the mind of the prosecutor, without in respect to the investigative powers, their more, will not serve as a basis for judicial extent and use, has been partially responsible sanction against the prosecutor. Such consider- for the failure of criminal against ations are practical elements of his discretion. inefficient or corrupt prosecuting attorneys. The In addition to his ability to refuse to initiate corrupt prosecutor, when challenged to justify prosecution, the corrupt prosecutor can in many his laxity in the investigation of complaints, instances effectively forfeit a conviction by usually will defend his actions on the hypothesis underplaying his role in criminal investiga- that he lacks any positive investigative duty 3 tions. 10 Generally, by the time a case has A prosecutor linked with organized crime has progressed to the point where it is ready for n Ploscowe, ORGAxZED Cnra, 247 (1952). , most of the evidence has been collected. 2 Id, at 249. See also note 10 supra. Any additional necessary investigations are 13Even where assigns the prosecutor the usually of a supplementary nature, and the general duty to investigate in preparation to prosecutor must conduct these in order to have bringing an indictment against an offender, it must be taken into consideration that judicial interpreta- the duty of the prosecutor to prosecute crimes tion of the statutory provision may nullify in part or within the county for which he was elected, and in whole the legislative purpose. In State v. Wallach, that such duty entailed the exercise of discretion 353 Mo. 312, 182 S.W.2d 313 (1944), for example, and the pursuit of some fixed enforcement policy the prosecutor was charged with the statutory which the court may not supervise. The court ruled duty to investigate, i.e., to inquire into the matter that the general duty to prosecute all crimes or the with care and accuracy, examine available evidence special duty to prosecute a particular crime may in each case, the law and the facts and the appli- not be required or supervised. cability of each to the other, and intelligently Apparently the prosecutor's discretion is not weigh chances of successful termination of prosecu- limited to cases where indictments are in existence tion, having in mind the relative importance to the against particular defendants, but extends to the county he served of different prosecutions he might earlier stage of the game where complaints are initiate. The court held that the legislature really made that crimes have been committed and the did not intend to saddle the prosecutor with the prosecutor is requested to use the powers of his personal obligation of undertaking investigations, office to obtain indictments and prosecute offenders. but intended instead merely to hold him responsible 8Ploscowe, ORGAnxzED Cu=, 219 (1952). along with other law enforcement officials for hav- 9See Baker, The Prosecutor-Initiation of ing the work done by somebody. Such a judicial Prosecution, 23 J. Cum. L. & CRmMnoLoGY, outlook, combined with the inherently discretionary 770-71 (1933). nature of the prosecutor's functions, increases the 10See the second one of the present series of difficulty in successfully prosecuting the official articles, on prosecutor's investigative powers. for failing to initiate investigation of complaints. 1957] CRIMINAL LAW CASE NOTES AND COMMENTS a potent weapon with which to defeat justice in The decision to take a of guilty in a par- the "bargain and compromise."'14 By this dis- ticular case lies, as a practical matter, within the cretionary procedure, a prosecutor may col- discretion of the prosecutor, whether his laborate with the attorney and arrange motives be good or bad. Theoretically, courts for a plea of guilty, sometimes to the offense can refuse to accept the which are offered. charged, but very frequently to a lesser offense. The courts, however, are heavily dependent for There are numerous instances in which the information upon the prosecutor and are in- 17 device serves a valid purpose;'5 however, the effective in supervising the taking of pleas. peculiar adaptability of this strategem to Furthermore, the cannot order prosecu- 8 criminal should subject it to close tion of the greater offense. Consequently, as a scrutiny. Through an intermediary usually general rule, the plea offered by the prosecutor referred to as a "fixer," a defendant may make is accepted by the court. a proposal to the prosecutor advising that he Armed with the power to employ the "bargain will agree to plead guilty to a lesser offense than and compromise,'" the dishonest prosecutor can the one charged. There have been frequent thus attain for himself a measure of respect in occasions when the plea thus accepted, and the the community by securing an impressive punishment which was imposed, were trivial in number of convictions, and at the same time comparison to the severity of the crime com- serve the cause of organized crime by the anemic 16 mitted. nature of the punishments meted out. If, for 14 Bargain and compromise are the usual result of instance, grand has been committed, law violations. Justice usually is futile in . The the corrupt prosecutor may agree to accept a smart defendants usually get the best possible deal plea of guilty to the offense of petit larceny; with the prosecution and then pay off. Our pro- hence, the prosecutor will have a conviction cedure has its faults. often err and the human added to his record and the offender will have in make any jury case a matter of favor. To ameliorate the evils uncertainty. One of the twelve may hold out and received an illegal defeat justice. Moreover, the prosecutor must face of the prosecutor's practically unrestrained dis- as well the possibility of uncertain sentences if he cretion in using the "bargain and compromise," goes to trial. If he were offered the acceptance of a it has been suggested that a full hearing should four-year term by the defense, goes to trial and only be held on every request that a "plea to the wins a three-year term, the state suffers a double lesser offense" be entered; and that some loss. The farther a case goes, the more uncertain it becomes. Contrary to the usual view, the prosecutor method should be devised to indicate to the who is a shrewd bargainer adds to the certainty of court that a conviction cannot be expected on the law. The good prosecutor tries his strong cases but he always bargains with his weak ones. almost certain to have in the background, particu- Baker, The Prosecutor, 23 J. Clum. L. & CRzm- larly in Cook County, a session of bargaining with NOLOGY, 787 (1933). the state's attorney. If the prisoner is charged with 15The prosecutor may have perfectly legitimate a severe crime, which for some reason or other he reasons for striking a bargain with the defendant's does not care to fight, he frequently makes over- attorney. His case may be weak. Corroborating tures to the state's attorney to the effect that he testimony may be missing. The complainant may will plead guilty to a lesser crime than the one be himself an unsympathetic character and may charged.... These approaches, particularly in have contributed to the crime. The penalties of the Cook County, are often made through another law may be too harsh for the specific crime with person called a "fixer" .... We found many cases in which the defendant is charged. Jury trial is which the plea accepted, and the punishment in- notoriously uncertain, expensive and time-con- flicted, seemed trivial in comparison to the magni- suming. The defendant may have aided the prose- tude of the crime committed. cutor in another proceeding, and thus deserved some Illinois Crime Survey, 470 (1929). mitigation in treatment. 17 Ploscowe, ORGANIzED CRIhE, 223 (1952). 18Baker, The Prosecutor, 23 J. CRIM. L. & Ploscowe, ORGAN=ZD CRImE, 222 (1952). 36 When the plea of guilty is found in records it is CRI MaNoLoGY, 788 (1933). CRIMINAL LAW CASE NOTES AND COMMENTS [Vol. 48 the greater charge before it is permitted to be It has been suggested that the nolle abandoned. 19 prosequi gives the prosecutor a power that is In addition to his authority to compromise, especially vulnerable to abuse in large cities, the criminally-influenced prosecutor can because of a mounting crime rate, lack of a "throw" many cases by use of the tradition of disinterested public service, and the motion nolle prosequi, or similar motion to dis- unhealthful ramifications of political in- 20 miss the indictment. This motion gives the fluence.Y Several states have sought to remedy prosecutor effective control over the progress of this unrestrained power by providing that the criminal proceedings. It is within his discretion prosecutor must obtain court approval for a to dismiss an indictment or refuse to prosecute. motion to dismiss an indictment or informa- It has been held that a court is powerless to tion.24 The unethical use of this common law prevent the entry of the order nolle prosequi, to dismiss indictments and that it may be entered without leave of power of the prosecutor court.n In federal practice, if an order dismissing may perhaps be circumscribed by a require- the indictment is properly made, the court, in ment that the court approve a nolle prosequi the absence of special statutory authority, has only for "good cause" which decision should be no power to refuse it, unless it can be shown entered in the minutes "with reasons there- that the refusal to prosecute results from cor- for."2 1 Due to the dependency of the court rupt motives. s upon the prosecutor for information, and fre- congested dockets, however, such dis- 19See id, at 791. quently 2 United States v. Woody, 2 F.2d 262 (D. positions by the prosecutor usually are final, Mont. 1924). 21 The court commented that the motion itself is the prosecuting officer terminating the criminal but a form to advise the court that the prosecutor proceeding, and the court, unless authorized by will not prosecute the accused, and to clear the statute, has no power to enter such an order or court's records of an abandoned case. Id, at 264. direct that such order be entered. The Brokaw 22 United States v. Brokaw, 60 F. Supp. 100 case held that prosecution or dismissal of all (S.D. Ill. 1945). In this case, the federal govern- criminal actions in federal courts rests in the ment charged that an order be directed to the honest discretion of the prosecutor, and if from a district attorney to show cause why an order nolle corrupt motive he prosecutes, or refuses to prose- prosequi should not be vacated and the cause re- cute, the only remedy is a proceeding to remove him instated and set for trial. The court held against the from office or a criminal prosecution. government. It said that the control of criminal 2 The motion nolle prosequi is another example litigation is a prerogative and power similar to the of the decay of an institution which flourished power to initiating a prosecution and with reference successfully under the rural conditions of its origin, to such control the prosecutor derives his power and but which threatens to become a menace in a great duty from the common law, and thus under the modem city. Where the few criminal cases furnish common law he may not be required to submit his diversion for the town, where the prosecutor is a authority with respect to controlling the litigation in marked man among his fellow-citizens, where in- its various stages to the control of judicial dis- terest in the crime and the criminals lightens the cretion or the desires of interested individuals. harvest and shortens the winter evenings, there can At common law, prior to trial the prosecutor had be little abuse of the motion. Such checks are lost, the absolute uncontrolled power to enter nolle however, in the rush and roar of a great city, es- prosequi, and after the empaneling of the jury until pecially the typical American metropolis, with its the return of the , the power was subject to mounting crime rate, its lack of a tradition of dis- control of the court, and following the return of the interested public service and the insidious rami- verdict the uncontrolled power of the prosecutor fications of political influence. to enter a nolle prosqeui revives and continues until Cleveland Crime Survey, 328 (1922). such time as judgment is entered and sentence 24 See Wickersham Commission Report on Prose- imposed. cution, 98 (1931). The court noted that whenever an order of nolle 25 Baker, The Prosecutor, 23 J. Cim. L. & prosequi is properly entered, it remains the act of CRMNOLOGY, 791 (1933). 19571 CRIMINAL LAW CASE NOTES AND COMMENTS with or without the approval or direction of the police superintendent, charged with ministerial court. obligations in causing the laws of the state to be executed and enforced, is at the same time in- NATURE OF THE POLICE OFFICE vested with discretion in the allocation of avail- In contrast to the discretionary nature of the able resources in the performance of those duties of the prosecutor, the duties of the police duties.30 Where the superintendent is faced department are essentially ministerial. The with a serious gambling problem, for example, police officer's duty is to execute the mandates and also other crimes demanding attention, he 2 lawfully issued by his superiors. His obligation must take into account the number of men at to perform is mandatory rather than permis- his disposal, and the relative severity of the siveY The performance of his duties is not sub- various crimes, in deciding what action to take ject to the factor of personal judgment which in the performance of his ministerial duties.3' characterizes the office of the prosecutor.n This discretion in the allocation of men and It is conceivable, however, for a ministerial other resources is a significant factor to be con- officer to possess a quantum of discretionary sidered in an action against such a police official power to look into facts and act upon them without altering the ministerial nature of his for misconduct in office. office.u For example, it has been held that a REMEDIES-IISCO'NDUCT IN OFFICE 26 Knickerbocker v. Redlands High School There are two forms of judicial sanction Dist., 49 Cal. App.2d 722, 122 P.2d 289 (1942); Mekota v. State Bd. of Equalization and Assess- against law enforcement officials-civil and ment, 146 Neb. 370, 19 N.W.2d 633 (1945). criminal. Included in the former are personal re- "Antin v. Union High School Dist., 130 Ore. 461, 280 Pac. 664 (1929). act into one discretionary in its nature. Stephens v. 28Cf, Hall v. State, 136 Fla. 644, 187 So. 392 Jones, 24 S.D. 97, 123 N.W. 705 (1909). 43 Am. (1939); Commonwealth v. Brownmiller, 141 Pa. JuR., Public Officers, § 238 (1942). Super, 107, 14 A.2d 907 (1940); Proctor v. Hufnail, 3sHe may that a person is violating the 111 Vt. 365, 16 A.2d 518 (1940). laws against gambling and yet it may be wise to 29 A duty is nonetheless ministerial because the postpone a raid or an until more evidence is person required to perform it is permitted a choice secured, or until other persons concerned may be of methods or instrumentalities in its discharge. apprehended. He must work largely through State v. Howard, 83 Vt. 6, 74 Atl.392 (1909). subordinates and it may well be that all police If ministerial officers can perform nothing but matters cannot be given immediate attention. He ministerial acts, then it is hard to conceive of such may have to decide whether to use his men at a officer, for some of the acts of every ministerial certain time for the suppression of gambling, or for officer must require the exercise of judgment and the solution of a . ... If he used his men for discretion, which is the very antithesis of a min- other purposes at a certain time, even though he isterial act. The ministerial officer may, therefor, acted in perfect good faith, it would be true that, as very properly be invested with power and authority the indictment charges, he "did wilfully omit, of a quasi-official character without at all affecting neglect and refuse to cause the laws of the Com- the general classification into which all civil officers monwealth prohibiting the maintenance ... of are divided. gambling houses.., to be executed and enforced." State v. Ellis, 163 Neb. 86, 77 N.W.2d 809 813, Had he used his men in a concerted drive against (1956). gambling, he might with equal justice be charged Generally, the character of a duty as ministerial with failing to enforce the law against murder, or or discretionary must be determined by the act to be some other crime. Obviously this is a case where performed, and not by the office of the performer. there can be no crime unless the motive be bad, and Official duty is ministerial when it is absolute, all counts of the indictment are insufficient because certain and imperative, involving merely execution there is no charge of , or corruption. of a specific duty arising from fixed and designated Commonwealth v. Hubbs, 137 Pa. Super. 244, facts; that a may exist for the ascertain- 8 A.2d 618, 621 (1939). ment of those facts does not operate to convert the 311d, at 621. CRIMINAL LAW CASE NOTES AND COMMENTS [Vol. 48 moval actions,n quo warranto proceedings,3 Civil remedies, including removal of police- and proceedings to remove the prosecutor's men from their jobs through process of the civil name from the rolls of the court.m The criminal service commission hearing, are more flexible action involves indictment for misconduct in than criminal prosecutions, in that they need office. Removal actions are based upon statu- not be based upon the commission of a crime. tory cause, generally for incompetency, mis- In this respect, they afford a remedy when the conduct in office, and the conviction of a crime official, particularly the prosecutor, is incom- 35 in a criminal proceeding. petent but not corrupt, or when the requisite

3 E.g., State v. Allen, 126 Fla. 878, 172 So. 222 for instance. The executive order must merely (1937); State v. Foster, 32 Kan. 14, 3 Pac. 534 state facts having a reasonable relation to a ground (1884); In re Byrne, 193 La. 566, 191 So. 729 of suspension from office outlined in statutory pro- (1939). visions. Furthermore, an allegation of fact con- 3 McKittrick v. Graves, 346 Mo, 990, 144 S.W.2d tained in an executive suspension order need not be 91 (1940); State v. Wallach, 353 Mo. 312, 182 as definite and specific as allegations in an informa- S.W.2d 313 (1944). tion or indictment in a criminal prosecution. 1 Wilbur v. Howard, 70 F. Supp. 930 (E.D. Ky. Judicial review in this sphere is limited. A court 1947). cannot review the sufficiency of the evidence used 3- The following have been assigned by statute as by the governor as a basis for removal. The deter- causes for civil action against a public official: mination of the grounds for removal is a function malfeasance, misfeasance, nonfeasance, neglect of solely for the senate and governor under such rules duty in failing to use due diligence in the per- as may be prescribed. The court, however, can ex- formance of official duty, inefficiency, incompe- amine the jurisdictional facts upon which the tency, ineligibility, intemperance, intoxication, governor rests his action. Also, the court may ex- collection of illegal fees, acceptance of free passes, amine the charges against an official to see that they commission of a , favoritism, maladministra- conform reasonably to statutory cause, and to en- tion, and, occasionally, misconduct not connected force the right of the defendant to a hearing on the with office. In proceedings to remove the prose- specified charges. On this topic of executive re- cutor's name from the rolls of the court, the court moval, see: State v. Allen, 126 Fla. 878, 172 So. 222 formulates its own standard as to what constitutes (1937); Donahue v. Will County, 100 Ill. 94 (1881); "unprofessional conduct" to warrant striking of the State v. Hay, 45 Neb. 321, 63 N.W. 821 (1895); prosecutor's name. This remedy merely prevents State v. Purchase, 57 N.D. 511, 222 N.W. 652 the prosecutor from practicing in the particular (1928). court involved, and does not prevent his practicing Since courts have no inherent power of removal of in any other court, nor does it affect his holding of public officials, Brister v. Weston, 241 Wis. 584, the office of prosecutor. See Wilbur v. Howard, 70 6 N.W.2d 648 (1942), provision is often made by F. Supp. 930 (E.D. Ky. 1947). constitutions or statutes for judicial removal pro- The most effective and widely used civil remedies ceedings of such officials. State v. Scarth, 151 are personal removal actions and quo warranto Okla. 178, 3 P.2d 446 (1931); Is re Bostwick, 43 proceedings. There are two main forms of personal Ohio App. 76, 181 N.E. 905 (1931). This proceeding removal proceedings: executive removal, and may be brought by a private citizen where it is pro- judicial removal. vided for by statute. Otherwise, the individual is In some states, where there is constitutional required to show a special interest in the action, provision for executive removal, the governor has such as, an allegation that he is entitled to the same the sole power to determine whether charges against office. Wishek v. Becker, 10 N.D. 63, 84 N.W. 590 an officer are sufficient to warrant removal. State v. (1900); Woods v. Varnum, 85 Cal. 639, 24 PAC. Allen, 126 Fla. 878, 172 So. 222 (1937); People v. 843 (1890). Where not otherwise provided for by Abeam, 131 App. Div. 30, 115 N.Y.S. 664 (1909); statute, it is permissible for the court to authorize O'Brien v. Olson, 42 Cal. App.2d 449, 109 P.2d 8 proceedings to be conducted either by the district (1941); Hatton v. Joughin, 107 Fla. 850, 145 So. attorney or by attorneys appointed by him. State 174 (1933). No question of discretion is involved v. Box, 34 Tex. Civ. App. 435, 78 S.W. 982 (1904). where the governor uses the executive suspension judicial removal proceedings are designed to pro- power over the public official. In this respect, ex- vide a speedy remedy for the removal of corrupt ecutive removal differs widely from quo warranto, and unfaithful officials. State v. Scarth, 151 Okla. 19571 CRIMINAL LAW CASE NOTES AND COMMENTS proof of corruption is not available. Conse- responsible for his dishonesty. A successful quently, such actions have been more frequently criminal prosecution can serve as an object employed against law enforcement officials than lesson to other officials who might be, or might criminal procedures. contemplate being, in the pay of organized The objective, in imposing judicial sanction crime. Furthermore, the nature of a criminal against a dishonest law enforcement official, is prosecution is such that newspapers and other not primarily his removal and punishment, but mass media seize upon it as good selling ma- the incidental effect upon the criminal elements terial, with the result that such a prosecuiton of a public official may be clothed with opprobrious 178, 3 P.2d 446 (1931). Since this form of action is sometimes considered penal, or quasi-criminal, publicity, often sensationalized. This is not courts have discretion to determine whether facts present in civil cases and it can 'react to the require removal, and a finding that the officer was distinct disadvantage of organized criminality. guilty of misconduct in office does not of itself Glaring publicity, revealing and emphasizing necessitate removal. State v. Tarr, 62 S.D. 305, the active presence of criminal activities in the 252 N.W. 854 (1934). Generally, however, the community, has very apparent power to dis- judicial removal proceeding is classified as a civil courage public patronage of such activities. On remedy. State v. Scarth, swpra. In the absence of the other hand, the assumption of public office statutory provisions prescribing the procedure, implies that the officeholder is subject to re- proceedings are prosecuted according to common law moval if he fails to live up to the responsibilities practice and according to the ap- plicable in the particular jurisdiction. State v. of his office. Such a dismissal from office lacks Scarth, supra. Sometimes, however, it is held that the stigma attached to criminal indictment. the ordinary rules of civil procedure do not apply to Criminal prosecution, therefor, rather than a summary proceeding for removal authorized by civil removal, appears to be the more potent statute. Beesley v. State, 219 Ind. 239, 37 N.E.2d weapon against criminal organizations and cor- 540 (1941). In such cases, the legislature has a rupt law enforcement officials. liberal discretion in prescribing the procedures to be That is not to say, however, that civil action follolved. Fitts v. Superior Court in and for Los should be unduly minimized in importance. Angeles County, 6 Cal.2d 230, 57 P.2d 510 (1936). There may be instances in which it is impossible Ordinarily, the rules governing criminal pleading do not apply in a judicial removal proceeding, and ercise of authority unlawfully asserted. Johnson v. the rules of pleading used are those applicable to Manhattan Ry. Co., 289 U.S. 479 (1933). The ordinary civil actions. King v. Smith, 98 Mont. 171, remedy, however, is not ordinarily available to 38 P.2d 274 (1934). The majority rule is that in this regulate the manner of exercising the powers of the type of removal action, an officer may be removed office. Johnson v. Conservative Savings & Loan for an offense which is punishable criminally, al- Ass'n, 143 Neb. 805, 11 N.W.2d 89 (1943). though he has not been convicted on an indictment The action of quo warranto is a judicial pro- for the crime. The official, however, cannot be im- ceeding, and the fact that the legislature has prisoned excepting upon conviction in a criminal assigned a specific removal process for public action. Bland v. State, 38 S.W. 252 (Tex. 1896). officials does not prevent judicial removal through a Quo warranto and judicial removal proceedings quo warranto proceeding, upon any of the same are similar in that in order to warrant removal statutory causes which would warrant a statutory where the charge is the commission of misconduct removal proceeding. They are not mutually ex- in office, guilt must be established beyond a reason- clusive remedies. State v. Wymore, 345 Mo. 169, able doubt, Phillips v. State, 75 Okla. 46, 181 Pac. 132 S.W.2d 979 (1939). An information in quo 713 (1919), or by evidence that is clear and con- warranto may be instituted by the attorney general vincing. In re Diehl, 47 Ohio App. 17, 189 N.E. or by the district attorney of an adjoining district, 855 (1933). McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d 91 As distinguished from judicial removal, quo (1940), or by statute, a civil district judge can warranto is an action to try title to a public office. appoint an attorney to institute suit to remove the Ames v. Kansas, 111 U.S. 449 (1884). Although in official from office on the request of a specified form a criminal proceeding, que warranto is a civil number of taxpayers. In re Byrne, 193 La. 566, 191 remedy addressed to preventing a continued ex- So. 729 (1939). CRIMINAL LAW CASE NOTES AND COMMENTS [Vol. 48 to produce sufficient evidence to sustain a be removed from office on the basis of the criminal indictment against a known dishonest alleged crime. Some cases hold, that, irrespec- official. In criminal proceedings against public tive of whether such removal proceedings are officials, the prosecution is governed by general deemed criminal or civil4 in character, the de- rules governing the weight and sufficiency of fendant cannot be removed unless it is estab- evidence in criminal prosecutions.36 Further- lished by the evidence beyond a reasonable more, the rules as to admissibility of evidence in doubt that he committed the crime.4' Other criminal prosecutions usually apply in criminal cases hold that the evidence in support of the actions against officialsY Thus, if the law en- complaint need only be clear and convincing." forcement official has neglected his duties, or In such a proceeding, of course, the officer can performed them improperly, but there is in- only be removed from office; he cannot be con- sufficient evidence to support a criminal charge victed of the alleged crime, conviction being of nonfeasance, a civil action may at least per- attendant only to a criminal prosecution. mit his removal from office.33 Where the basis of sanction against the official Vhere the official is charged with the com- is the commission of a crime, a criminal indict- mission of a crime subjecting him to removal ment is preferable to a removal action, both from office, it is not necessary in a civil action because of its punitive quality and incidental that he be found guilty of the crime itself.9 effect on organized crime, and because the However, notwithstanding the civil character of elements of guilt in both criminal and removal judicial proceedings for removal, some courts actions may have to be established sub- hold that the rules governing the introduction stantially to the same degree. In other words, if of evidence in criminal cases must be followed.40 the state has sufficient evidence to prove the This rule has been qualified in some jurisdictions commission of the crime for civil removal pur- so that an objection to the introduction of any poses, it probably has sufficient evidence to evidence under the accusation will be allowed warrant criminal indictment. and sustained only where it affects the real Law enforcement officials generally may be merits of the controversy and the substantial 4 rights of the defendant.4' There is lack of uni- 2Some cases have held that judicial removal formity among the decisions as to the standard proceedings are penal, Beesley v. State, 219 Ind. of proof that must be met before the official can 239, 37 N.E.2d 540 (1941), or quasi-criminal, State v. Naumann, 213 Ia. 418, 239 N.W. 93 36State v. Williams, 94 Vt. 423, 111 A. 701 (1931), in character, while others have considered (1920). them civil actions. Sullivan v. District Court of 7 People v. Deysher, 2 Cal.2d 141, 40 P.2d 259 Second Judicial Dist. in and for Silver Bow County, (1935); Sanders v. Commonwealth, 249 Ky. 225, 196 P.2d 452 (1948); State v. Scarth, 151 Okla. 60 S.W.2d 586 (1933). 178, 3 P.2d 446 (1931). It has been held also that "sIt must be kept in mind, however, that the such proceedings, being governed by the special discretionary nature of the prosecutor's office practice provided by the legislature, are neither plays as significant a part in civil actions as in civil nor criminal. State v. Borstad, 27 N.D. 533, criminal. This discretion must be overcome in a 147 N.W. 380 (1914). As distinguished from quo civil proceeding by proof that the acts, or instances warranto, a removal proceeding concedes title to of inaction, were such as to be without the bounds office and proceeds on the theory that the official of a good faith use of discretion. See State v. either has not forfeited his office by the act for- Wallach, 353 Mo. 312, 182 S.W.2d 313 (1944), for bidden or has committed a criminal offense and an example of the breadth of this discretion as it subjected himself to punishment and forfeiture of affects requirements of proof in civil actions. the office on conviction. McKittrick v. Wymore, 20 Law v. Smith, 34 Utah 394, 98 Pac. 300 343 Mo. 98, 119 S.W.2d 941 (1939). 4' (1908). Phillips v. State, 75 Okla. 46, 181 Pac. 713 40Skeen v. Paine, 32 Utah 295, 90 Pac. 440 (1919). (1907). "In re Diehl, 47 Ohio App. 17, 189 N.E. 855 41 State v. Borstad, 27 N.D. 533, 147 N.W. 380 (1933); Crowder v. Smith, 232 Ia. 254, 4 N.W.2d (1914). 267 (1942). CRIMINAL LAW CASE NOTES AND COMMENTS indicted for the broad crime of "misconduct in feasance is a default in not doing a lawful act 8 office" in the performance of duties of the in a proper manner. Self-gain is often an in- office.4 5 This crime is of three types: mal- gredient of the crime of malfeasance, but is not feasance, misfeasance, and nonfeasance. Mal- usually associated with misfeasance. An official feasance is the doing of an act wholly wrong and who accepts a bribe would be guilty of mal- 6 4 7 unlawful,4 involving moral turpitude. Mis- feasance rather than the lesser offense of mis- feasance. Nonfeasance is the substantial failure 41McKittrick 49 v. Williams, 346 Mo. 1003, 144 to perform a duty without sufficient excuse. S.W.2d 98 (1940). At this point, the distinction between the 46Holmes v. Osbor, 57 Ariz. 522, 115 P.2d 775 ministerial duties of the police and the dis- (1941). cretionary ones of the prosecutor, assumes '7Ex pare Amos, 93 Fla. 5, 112 So. 289 (1927); cf. State v. Jefferson, 88 N.J.L. 447, 97 At. 162 practical importance. It is generally held that (1916); Commonwealth v. Rowe, 12 Ky. 482, wilfulness and corruptness are essential elements 66 S.W. 29 (1902); Speer v. State, 130 Ark. 457, of the general crime of misconduct in office.5 0 198 S.W. 113 (1917). Where the office is ministerial, however, the In the Jefferson case, the prosecutor was charged only prerequisite to bringing a criminal action with accepting bribes from violators of the crim- for misconduct in office is that his breach of inal law and thus giving them immunity from duty be wilful. 5' A showing that a police officer prosecution for their crimes. The court ruled that an allegation of was sufficient to sustain a "8Holmes v. Osbor, 57 Ariz. 522, 115 P.2d 775 malfeasance indictment. (1941). The Speer case involved an indictment charging 41 Hardie v. Coleman, 115 Fla. 119, 155 So. 129 malfeasance against the prosecutor for abetting crime (1934). by prosecuting operators of gambling houses for 501 BISHOP, CRIMINAL LAW §§460, 468(a) the of gaming, instead of for the felony (9th ed. 1925). as itwas under state law. In defining "corrupt intent" "1State v. Sweeten, 83 N.J.L. 364, 85 At. 309 to satisfy malfeasance requirements, the court said (1912); State v. Kearn, 51 N.J.L. 259, 17 At. 114 it did not have to include wrongful self-gain, but (1889); Commonwealth v. Hubbs, 137 Pa. Super. could be shown through evidence of acts committed 244, 8 A.2d 618 (1939). Occasionally courts have with lack of good faith. In resolving the issue of held that an act or in breach of a minis- good faith, the opinion stated that similar acts of terial duty must be either wilful or corrupt. State v. commission or omission occurring about the same Williams, 109 Ark. 465, 161 S.W. 159 (1913); time as the violation alleged, tending to prove the Commonwealth v. Rosser, 102 Pa. Super. 78, 156 issue, are admissible. Hence, evidence that other Atl. 151 (1930); 1 BIsHOP, CRIMNzAL LAW §§459, gambling houses were running during the time of the 468(a) (9th ed. 1925). breach of the duty alleged, was competent to show Many of the difficulties that have occurred in bad faith in the exercise of discretion. In defining to prosecute police officials for misconduct the duty of the prosecutor to initiate proceedings in office may be found in the situation that has against parties whom he knows, or has reason to existed in Cook County, Illinois. One of the chief believe, have committed crimes, the court held that impediments to prosecution is the Illinois judicial the mere fact that such duties rise to the dignity of use of the federal exclusionary rule. The corrupt exercising discretion, cannot excuse neglect of duty police official can act in such a manner as to thwart by the prosecutor. successful prosecution of a criminal defendant and The Speer case is questionable in its application at the same time protect his own skin from similar of malfeasance requirements to the indictment. sanction. Under Illinois statute law, maintaining a Generally, it is not necessary in such a case to allege gambling house equipped with gaming devices, is corruptness: corrupt intent should be a necessary unlawful. ILL. REv. STAT. §343 (1953); ILL. REV. allegation only when the intent with which the STAT. §28 (1955). Police duties in this respect are particular action was effected results in the moral ministerial, in that the language of the statute turptitude of the act itself. Thus far the Speer directs them to take action against violators. The case is on familiar ground. Query, however, whether wide-open conditions that flourish in certain areas acts committed without good faith are therefor in Cook County cannot exist without local cor- inherently corrupt? ruption, i.e., the "pay off" to members of the CRIMINAL LAW CASE NOTES AND COMMENTS [Vol. 48 knowingly and intentionally refused to perform order to find him guilty of the crime of mis- his duty, such as in following orders issued by conduct in office. a superior, without good excuse, would tend to Where the duty violated involves discretion, prove wilfulness. It is not necessary that illegal however, it is usually held that "corrupt intent" or corrupt motives of the officer be alleged in is a vital element of the offense. This require- ment is designed to protect the discretionary police force. Police officials have the power in official from indictment for mere error of judg- Illinois to destroy gaming implements without ment or for of law. 2 Corrupt intent violating any constitutional provision. People v. signifies the doing of an act with the intent to Moore, 410 Ill. 241, 102 N.E.2d 146 (1951). It is at with this point that corrupt officials have gone through obtain an improper advantage inconsistent the semblance of performing their duty by raiding official duty and the rights of others.n Corrupt gambling houses without a , seizing a intent may be actual, as in the case of the few pieces of equipment, and thus preventing the crimes of bribery, , and receiving use of the equipment in a criminal prosecution benefits from the deposit of public funds; 4 or it against the offender. They perform their duty when may be implied from an habitual failure to the raids are instituted; as such, they serve an perform the duties of the office. 55 quality which is not without value as a While "corrupt intent" is generally all that means of discouraging the criminal elements from is required in an indictment charging non- continuing their illegal operations. The fact has feasance and misfeasance, confusion has re- been, however, that such raids have accomplished very little of practical value. Furthermore, the sulted from application of the terms "corrupt" official is only truly performing his duty when he and "willful." For instance, several cases have diligently attempts to obtain the necessary search held that if the duty involves discretion, the warrant in order to obtain competent evidence for wrongful act or omission must be both wilful and use against the offender in a criminal trial. Harass- corrupt to constitute nonfeasance or mis- ment raids are of supplemental utility only, if the feasance. 6 Another case held that an allegation responsible law enforcement officer is doing his job. Unfortunately, it is difficult to get a case against the official, despite the requirements of the ex- such an official, since he can reply that whenever he clusionary rule. applies for a search warrant, the particular gambling One of the intrinsic problems in getting evidence house is "tipped off" in advance, thus frustrating admitted into Illinois criminal proceedings, has been the purpose of the warrant. This type of defense the fact that much of it is derived from informers. has assumed a certain nuisance value in criminal Due to the undercover nature of the illicit dealings prosecutions of police officials in Cook county. between organized crime and enforcement officials, The Kefauver committee uncovered several informers have been employed by responsible legal Illinois cases where a jury acquitted a corrupt officers and investigative agencies such as the official despite the strongest competent evidence Chicago Crime Commission. It is not possible to against him. See note 90 infra. sustain a criminal indictment on this type of Another practical difficulty, has been the peculiar evidence alone, since such evidence is inadmissible antipathy occasionally displayed by Illinois courts to prove the guilt of the person accused. It is a not toward the efforts of the law to root out organized uncommon occurrence that the corruption of a crime. As an example, in a recent Cook county case, particular official will be known, yet nothing ap- the court sustained a motion to suppress illegally parently can be done about it. seized evidence by a defendant who lacked any - State v. Wheatley, 192 Md. 44, 63 A.2d 644 proprietary interest in the goods introduced or the (1949). premises from which they were taken. State v. 5 State v. Lehman, 182 Mo. 424, 81 S.W. 1118 Torrello, (unreported). Such a holding, in clear (1904). violation of any basic requirement of the exclusion- 5State v. Douglass, 239 Mo. 674, 144 S.W. 407 ary rule, compels the thought that if it happened (1912). once, it could happen again. That is, it is conceivable 5 Cf. State v. Green, 52 S.C. 520, 30 S.E. 683 that a judge in a case against a public official, in (1898). which illegally seized evidence is sought to be in- 56 State v. Wheatley, 192 Md. 44, 63 A.2d 644-46 troduced against the official, and in which he has no (1949); Commonwealth v. Brownmiller, 141 Pa. interest, will sustain a motion to suppress made by Super. 107, 14 A.2d 907 (1940); Commonwealth v. 19571 CRIMINAL LAW CASE NOTES AND COMMENTS of either wilfulness or corrupt intent is sufficient The requirement of allegation and proof of to sustain an indictment for violation of a dis- "corrupt intent" in most misfeasance and non- cretionary duty. 0 Even where statutes have feasance actions increases the chances of failure been enacted requiring only a wilful refusal or to obtain a successful prosecution. Partly for neglect in order to convict, cases sometimes this reason, civil removal actions have been have construed these statutes as requiring an more frequently used than criminal prosecu- allegation of corrupt intent in the case of an tions. There has been general insistence by the alleged violation of a discretionary duty. 0 courts, however, that corruptness or some al- One of the reasons for the rather indiscrimi- legation to like effect, be required in order to nate use of "corrupt" and "wilful" is the fact protect the discretionary offi6er from being put that courts sometimes have blurred the precise in fear of prosecution for bona fide errors of meaning of "corrupt intent."6 0 A few courts, for judgment.6 2This reasoning is founded upon the instance, have held that "wilful" is synonomous supposition that a certain quantum of discretion with "corrupt intent."60 Another view is that is needed in the office of such an official as the an allegation of wilfulness is sufficient, even public prosecutor. If the prosecutor were re- though the duty involved is discretionary, and quired arbitrarily to investigate and initiate that corruptness need not be alleged. 61 prosecution in every instance of violation of the law, difficult cases involving serious crimes Hubbs, 137 Pa. Super. 244, 8 A.2d 618 (1939); 1 might be poorly handled because of time con- BISHoP, ClmunAL LAw §460; 1 BURDIcK, LAw sumed by minor ones. or CirmE §272(a); MiLLER, CRnMnAL LAW Care should be taken not to misuse the term §162(a). "wilful" in nonfeasance and misfeasance cases. 5 F- porle Amos, 93 Fla. 5, 112 So. 289 (1927). 5 6E.g., State v. Battrud, 210 Minn. 214, 297 The refusal of the prosecutor to investigate and N.W. 713 (1941). prosecute several out of many cases confronting 59State v. Winne, 12 N.J. 152, 96 A.2d 63 him would be clearly wilful in the sense of being (1953); Commonwealth v. Hubbs, 137 Pa. Super. intentional;3 however, it cannot be inferred, 244, 8 A.2d 618 (1939); Steinman v. McWilliams, without more, that such refusal was motivated 6 Pa. 170, 178 (1847). by a corrupt intent, a connotation which has 60 State v. Sweeten, 83 N.J.L. 364, 85 Atl. 309 been suggested to be included in the meaning (1912); State v. Castle, 75 N.J.L. 187, 66 At. 1059 of "wilful."6 To subscribe to the reasoning that (1907); State v. Kearn, 51 N.J.L. 259, 265, 17 Atl. 114, 116 (1889). appears in criminal statutes has it been construed 6LState v. Winne, 12 N.J. 152, 96 A.2d 63 to include improper motive within its meaning. (1953). Roberts v. United States, 126 Fed. 894, 904 (5th In this case, the court held that "wilfulness" in- Cir. 1903). See also Commonwealth v. Hubbs, dicates a lack of good faith, and in the absence of supra. But see 1 BISHOP, CRmnNAL LAW §428. just cause or excuse, equivalent to bad faith. The For cases on the question of whether "corrupt court further held that these elements sufficiently intent" necessarily includes wrongful self gain or if it constituted the mental elements of the crime. is sufficient that the alleged acts were committed For a case apparently supporting this view, see with a lack of good faith, see Speer v. State, 130 State v. Jefferson, 88 N.J.L. 447, 97 At. 162 (1916). Ark. 457, 198 S.W. 113 (1917); State v. Sweeten, In that case, the court indicated that a charge of 83 N.J.L. 364, 85 Atl. 309 (1912); cf. Broadbent v. corruptness is surplusage, being implicitly alleged United States, 149 F.2d 580, 581 (10th Cir. 1945). by "wilfulness." The Jefferson case, however, can 60Public officers should not be hampered in the only be regarded as doubtful authority for the performance of discretionary duties by fear of principle that wilfulness constitutes a substitute for criminal prosecution for an error of judgment corruptness, since there the crime alleged inherently committed in good faith. Hence, it is necessary that involved moral turpitude (accepting a bribe), and in the prosecution of a discretionary official, no allegation of corruptness was required. The case "corrupt intent" be alleged. Commonwealth v. of Commonwealth v. Hubbs, 137 Pa. Super. 244, Hubbs, 137 Pa. Super. 244, 8 A.2d 618 (1939). 250, 8 A.2d 618 (1939), on the other hand, held that 6 See Baker, The Prosecutor, 23 J. Cam. L. only an exercise of discretion in bad faith could be CRimmoLoGy, 771 (1933). indictable. Furthermore, only when "wilfully" 61See notes 60 and 61 supra. CRIMINAL LAW CASE NOTFS AND COMMENTS f[Vol. 48

"intentional" is synonomous with "wilful", and It has been advocated that there should be no that the latter is synonomous with "corrupt criminal proceedings against for intent", would be in effect to destroy the dis- misfeasance or nonfeasance. 69This view is based cretionary nature of the prosecutor's functions, upon the hypothesis that the threat of criminal with the result that a prosecutor might fail to prosecution, regardless of the elements neces- exercise his discretion for fear of prosecution sary to be proved for a conviction, will detract for an honest error in judgment, and proceed from the discretionary nature of the prosecutor's with an investigation or prosecution which he duties. Adherents of this view argue that the considers unwarranted. It would be an expense threat of civil removal is a sufficient sanction, to the state and to society, and reduce the and yet affords protection from criminal prose- efficiency of the prosecutor's office. 65 Wilfulness, cution to honest but incompetent prosecutors. therefore, should not be used as an alternative There is, however, the contrary view that, in allegation to corrupt intent in nonfeasance and spite of the dangers involved and the difficulty misfeasance actions; it is not synonomous with in ascertaining corrupt intent, the benefits to be the latter and its use generally should be re- gained from controlling law enforcement officials stricted to cases involving alleged breach of a through criminal process are too valuable to ministerial duty. society to be jeopardized.70 This latter view is An exception to the general rule of alleging the more realistic. The danger to the honest "corrupt intent" in criminal indictments is to prosecutor or other official whose duties are be found in malfeasance prosecutions. Since discretionary, is more apparent than real. There malfeasance is an act involving moral turpi- is a wide gap between even a series of blunders tude, it is the perpetration of the act itself, of judgment and their commission in bad faith, apart from the motive for the act, which sub- or with corrupt intent; and the courts fairly con- jects the official to punishment. Since the act of sistently require that this gap be convincingly malfeasance inherently involves corruptness or bridged before allowing a conviction of the self gain, it has been held that corrupt intent official. 71 Even conceding the existence of cer- need not be alleged in order to charge this tain dangers to a wise use of discretion from the crime.66 Neither does malfeasance in office re- threat of criminal prosecution, they are out- quire proof of corruption, selfish motives or weighed by the possibility that such an official hope of private gain. The indictment, how- may be more susceptible to criminal influence ever, must contain an allegation of the commis- than he otherwise would be if he knows that the sion of the act, and the proof must sustain this worst eventuality is civil removal from office. charge." alleging failure to enforce the laws, nonfeasance, it must be shown that he knew such places existed, - Baker, The Prosecutor, 23 J. Clm. L. & where they were located, and that he failed to act CRIMNOLOGY, 770 (1933). upon this information. People v. Flynn, 375 Ill. 66EX pare Amos, 93 Fla. 5, 23, 112 So. 289, 296 366, 31 N.E.2d 591 (1941). 69 (1927); cf. State v. Jefferson, 88 N.J.L. 447, 97 Baker, The Prosecutor, 23 J. CRim. L. & Atl. 162 (1916); Commonwealth v. Rowe, 12 Ky. CRIMINOLOGY, 770 (1933); Snyder, The District 482, 66 S.W. 29 (1902); Speer v. State, 130 Ark. Attorney's Hardest Task, 30 J. Cans. L. & CRIMI- 457, 198 S.W. 113 (1917). NOLoGoY, 167 (1939). 67 Dinneen v. Larson, 231 Wis. 207, 286 N.W. 70E.g., State v. Allen, 126 Fla. 878, 172 So. 222 41 (1939). (1937); Attorney General v. Tufts, 239 Mass. 68In order to sustain an indictment charging 458, 132 N.E. 322 (1921); State v. Wallach, 353 bribery in Illinois, for example, the state must Mo. 312, 182 S.W.2d 313 (1944); McKittrick v. prove that the defendant was a public officer, that Graves, 346 Mo. 990, 144 S.W.2d 91 (1940); he was offered and accepted money or other valu- McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d able thing, and that such payments were for the 979 (1939). purpose of influencing him in the performance of his 7 See Wilbur v. Howard, 70 F. Supp. 930 (E.D. official duties. People v. Siciliano, 4 Ill.2d 581, Ky. 1947); McKittrick v. Graves, 346 Mo. 990, 123 N.E.2d 725 (1954). In the same state, to 144 S.W.2d 91 (1940); McKittrick v. Wymore, 345 sustain an indictment against a public official Mo. 169, 132 S.W.2d 979 (1939). 19571 CRIMINAL LAW CASE NOTES AND COMMENTS

SPECIAL EVIDENTIARY PROBLEMS their admissibility against himJ7 But since a It is frequently difficult to establish the law enforcement official usually does not have official's knowledge of illegal activities which he any proprietary interest in the illegally seized is under a duty to suppress. Where a public evidence, it should be considered usable against official is charged with failure to enforce gam- him.76 bling and liquor laws, evidence of gambling RoLE OF rnr.GRA,,D JuRY stamps outstanding in the community should be competent evidence against him. In one case, A potent weapon in fixing responsibility for the number of persons who had paid federal corruption in law enforcement is the use of the occupational tax on slot machines was held common law investigative powers of the grand admissible as evidence of the bad faith of the jury. The has the duty to make in- prosecutor in repeatedly failing to initiate prose- vestigations whenever the arm of the govern- 7- ment charged with cution.2 The court stressed the fact that the the duty of conducting names of the purchasers of these stamps were criminal prosecutions presents evidence to it under the reasonable belief that the criminal listed in a public record, with which the prose- 7 cutor should have been familiar. While this laws have been violated.: Where the public case involved merely a proceeding to remove the prosecutor himself is corrupt, the court, when it prosecutor's name from the rolls of the court, a becomes apparent that a system of crime exists civil action, there is no infirmity in the nature among public officers, can properly order an of such evidence to prevent its utilization in investigation by the grand jury; however, the criminal proceedings. investigation initially cannot be directed at a particular individual, nor at the commission of Where a prosecutor has entered many nolle 78 prosequis, and it is shown that there was ample ordinary crimes. Once the grand jury is con- evidence to warrant further prosecution, his vened, however, its power is not dependent actions in this respect may be used as a basis for upon the court, but is original and complete, determining the bad faith of the prosecutor in and it has the power to inquire into all offenses the performance of his duties.3 In addition, which come to its knowledge, whether from the pleas of guilty by individuals named in grand court, the prosecuting attorney, its own mem- jury indictments returned against them consti- bers, or from any other source. It may make tute admissions against interest, and as such are "United States v. Jeffers, 342 U.S. 48 (1951). 78 competent evidence in a removal proceeding to The JYffers case, note 75 supra,by holding that prove that the official knew, or should have an allegation of proprietary interest in either the known, of lawviolations within his jurisdiction.4 goods or the premises gives the defendant standing Evidence illegally seized from a third party to suppress, is at variance with the prior exclusion- should be admissible in an action against the ary rule requirements that the defendant must allege a property interest official where it is pertinent to show neglect of in the goods and the premises in order to have such standing. United duty or wrongful performance. In federal courts, States v. Jeffers is not binding upon state courts, and in those states which have adopted the of course, and many states require still that the federal exclusionary rule, evidence illegally defendant meet the dual-requirement test. seized from a defendant is not admissible in a 17In re Black, 47 F.2d 542 (2d Cir. 1931). criminal proceeding against him. It has also The inquisitorial power of the grand jury is the been held that if the defendant can show merely most valuable function which it possesses today and, a proprietary interest either in the goods seized far more than supposed protection which it gives to without a warrant or in the premises from which the accused, justifies its survival as an institution. they were seized, he has standing to object to As an engine of discovery against organized and far-reaching crime, it has no counterpart. Policy 7 Wilbur v. Howard, 70 F. Supp. 930 (E.D. emphatically forbids that there should be any Ky. 1947). curtailment of it except in the dearest cases. In re 7 McKittrick v. Graves, 346 Mo. 990, 144 S.W.2d Grand Jury Proceedings, 4 F. Supp. 283 (1933). 91(1940). 78Ferrill v. Graydon, 333 Ill. 429, 164 N.E. 832 74Id, at 96. (1929). CRIMINAL LAW CASE NOTES AND COMMENTS [Vol. 48 presentments of its own knowledge, without any demeanors, and whether or not there has been a 5 instruction or authority from the court before a magistrate.84 The grand jury has the power to proceed with There are limitations to the jurisdiction of an investigation and to subpoena witnesses, the grand jury, however. The majority rule without being required to state in the subpoena seems t6 be that a grand jury investigation the subject matter of the investigation or name must not become a "fishing expedition", or a the person or persons against.whom the inquiry blanket inquiry for purely speculative purposes. is directed. 80 This is a useful power where an It has been held in some cases that there is no official is under suspicion of misconduct, but power in the grand jury to institute or prosecute there is not enough evidence to warrant an out- an inquiry on the chance or possibility that some right criminal prosecution. The grand jury has crime may be discovered.85 On the other hand, the authority to seek this evidence through its many courts have ruled that the scope of the broad investigative powers, once it has been grand jury's inquiry is not narrowly limited by properly convened. Furthermore, where an forecasts of the probable result of the investi- inquiry is desired as to matters of general con- gation.8 6 cern, and no particular person is charged with The grand jury has served, incidentally, as a an offense, the grand jury and not the court, is method of control over police officers called to the only proper body to make such investi- testify before it. There is authority for allowing gation.81 the dismissal of policemen who refuse to sign In some states, statutes have been enacted "immunity waivers" in advance of testifying giving the grand jury authority to call witnesses before the grand jury.8Y The theory is that a to discover whether or not a crime has been committed.8' Even where special statutes have 84Reis v. Warden, 239 App. Div. 891, 264 N.Y.S. 948 (1933). set up special investigating bodies for particular 85 McNair's Petition, 324 Pa. 48, 187 Atl. 498 offenses, they have been construed as not limit- (1936). In states like Pennsylvania, which limit the ing the power of the grand jury to make in- grand jury to something more than a fishing ex- vestigations as to such offenses, or to divest it pedition, if an investigation by a grand jury is of such power.83 directed by a court, it involves all the powers and In at least one state, the grand jury has the incidents necessary to a complete inquiry into the power to inquire into the commission of all subject matter involved, and that the jury, through offenses, whether they are or mis- the court, may subpoena books, papers, and wit- nesses, and subject them to investigation. See Fraley 79People v. Sheridan, 349 Ill. 202, 181 N.E. 617 v. Rotan, 82 Pa. Super. 172 (1923). 16People v. Doe, 247 App. Div. 324, 286 N.Y.S. (1932).80 United States v. Invader Oil Corp., 5 F.2d 343 (1936); O'Connell v. United States, 40 F.2d 715 (1925); In re National Window Glass Workers, 201 (1930, cert. denied, 51 Sup. Ct. 658; Carroll v. 287 F. 219 (D.C. 1922). United States, 16 F.2d 951 (2d Cir. 1927), cerl. 81McNair's Petition, 324 Pa. 48, 187 Atl. 498 denied, 273 U.S. 763. In the Carroll case, the court (1936). discussed the scope of the grand jury's power of in- 2 Ploscowe, ORGANIZED CRI, 230 (1952). vestigation: 83 Hinz v. Hunt, 96 Okla. 285, 221 Pac. 1022 The grand jury investigation does not necessarily (1924). A statute prescribing additional causes for cease after it has heard the witnesses brought be- the removal of a person from public office, actions fore it by the.., attorney. Its investigation and thereunder to be commenced in name of state on the full dtuy is not performed unless and until every relation of the attorney general, held did not de- clue has been run down and all witnesses searched prive the grand jury of jurisdiction granted in a for and examined in every proper way to find if a prior act to inquire into and prefer charges against crime has been committed, and to charge the proper any public officer not subject to impeachment, person with the commission thereof. 16 F.2d at within the prescribed causes for removal mentioned 592. in the statute. 8 Drury v. Hurley, 339 Ill. App. 33 (1949); 19571 CRIMINAL LAW CASE NOTFS AND COMMENTS police officer, by reason of his special status, his be overlooked. Furthermore, if enough indi- duties and responsibilities, may not invoke his viduals can be removed from the law enforce- constitutional privilege against self-incrimina- ment scene by this method, it may be of con- tion in matters touching upon his occupation siderable value as a lever of control. without being guilty of a breach of his official duty." However, since his dismissal is in the CONCLUSION nature of a civil service discharge 9 it is not a The responsibility for the existence of cor- criminal punishment, and from that standpoint ruption within the ranks of those officials is less desirable than an outright criminal in- charged with the duty to execute and enforce dictment against a corrupt officer. It is an the law is not limited merely to the policeman effective means of removal, however, and there and the prosecutor. Some of the blame must be is always the possibility that an officer would shared by juries which occasionally, in the face rather "talk" than lose his job. The coercive of the strongest possible case against a corrupt effect, therefore, of such a measure should not official, nevertheless manage to deliver a verdict of ." In addition, the judiciary may be Christal v. Police Commission of San Francisco, subject to some criticism for not making more 33 Cal. App.2d 564, 92 P.2d 416 (1939). frequent use of the grand jury as a means for 88 The Drury case court held that a refusal to uncovering corruption in official circles.9' testify and a refusal to sign an immunity waiver before testifying are actually similar in effect. 90The Kefauver committee considered the Such officers are guardians of the peace and following cases bad examples of jury action. When security of the community, and the efficiency of our the chief of police of Calumet City, Illinois, was whole system, designed for the purpose of main- indicted for malfeasance in office, he admitted to taining law and order, depends upon the extent to the jury that gambling was widespread in the city. which such officers perform their duties and are He defended his action on the basis that license fees faithful to the trust reposed in them.... It is for from illegal taverns were supporting the town and the performance of these duties that police officers were keeping the tax rate low. Largely on the are commissioned and paid by the community, and support of such a defense, the chief of police was it is a violation of said duties for any police officer to acquitted by the jury of all charges. The chief of refuse to disclose pertinent facts within his knowl- police of Melrose Park, Illinois, was indicted for edge even though such disclosure may show, or nonfeasance for his repeated failure to take any tend to show, that he himself has engaged in action after notification received from the State's criminal activities. Christal v. Police Commission attorney's office, to the effect that certain named of San Francisco, 33 Cal. App.2d 564, 92 P.2d 416 illegal houses were operating within his jurisdic- (1939). tion. The defendant was acquitted. Senate Special 89In the Drury case, defendants filed for writ of Committee to Investigate Organized Crime in certiorari to review action of civil service commission Interstate Commerce, Third Interim Report, S. which had ordered them discharged from the REP. No. 307, 82d Cong., 1st Sess. 60-1 (1951). police force because of their refusal to execute in The records of the chiefs of police in these towns, writing immunity waivers when summoned and where gambling joints could be identified merely prior to testifying before the grand jury concern- by walking down the street, are records of neglect of ing matters arising out of their investigation of a official duty and shocking indifference to violations murder case. It was held that the commission's of law. Equally shocking is the acquiescence of the action was valid, on the grounds that failure to sign people of the towns, as evidenced by the acquittal immunity waivers constituted "conduct unbecom- of these men and their continuation in office. ibid, ing an officer" and was "cause" for removal of at 61. officers from their positions under provisions of 1,An outstanding example of what this jury can Illinois Civil Service Act, providing that a municipal accomplish is furnished by the activities of the civil service employee may not be removed "ex- "Blue ribbon" grand jury of 1943, which sat in cept for cause, upon written charges and after an Cook county, Illinois. As a result of its efforts, opportunity to be heard in his own defense." eleven officers of the local highway police, including ILL. REv. STAT. ch. 24Y2, §51 (1947). the former chief of that organization, were indicted