Private Prosecutions

by Jon Roland

There’s a growing awareness tradition of Anglo-American law course of the 19th century pri- that crimes are prosecuted selec- for criminal prosecutions to be vate prosecution proved itself in- tively in the United States, espe- conducted by private attorneys adequate. The private individual cially at the ederal level. U.S. or even by laymen. would frequently forego prosecu- Attorney’s have discretion to The practice of using private tion rather than incur the ex- pick and choose which cases attorneys to prosecute criminal pense and responsibility in- they wish to prosecute and as a offenses is derived from English volved. Sometimes there was no result some cases – which many common law. Until the late nine- individual who could be called believe should be prosecuted – teenth century English criminal upon to prosecute a particular are ignored by U.S. prosecutors. procedure relied heavily on a sys- case, and when a private indi- More troubling is the clear in- tem of private prosecution even vidual did institute proceedings, dication that many of the cases for serious offenses. This is dis- the case was very often badly not prosecuted are rejected for cussed in some detail in a classic prepared. Moreover, the system political reasons. or example, article by Morris Ploscowe, “The was abused for private ends, lend- it’s virtually impossible for an av- Development of Present-Day ing itself to bribery and collusion. erage citizen to file criminal Criminal Procedures in Europe . . . The office of the Director of charges against a federal judge and America”, 48 Harvard Law Re- Public Prosecutions was created and find a U.S. Attorney willing to view 433 (1935). On p. 437, by act of Parliament in 1879. . . . prosecute the case. As a result Ploscowe states, “The Germanic Many towns and boroughs ap- of this prosecutorial “discretion” procedure of Charlemagne and point solicitors whose functions (cowardice or corruption), the the Anglo-Saxon procedure of are to prosecute offenders. . . . government is effectively nearly the same period still Prosecutions are also carried on shielded from criminal prosecu- looked upon the redress of most by the police, either directly or tion. crimes as a private matter. . . . through private solicitors whom This article explores of an Since crime was in general they hire. The traditional English emerging solution for prosecu- treated as a private injury, there system of private prosecution is torial “discretion”: private pros- was no distinction between civil therefore supplemented by vari- ecutions. and criminal proceedings.” On p. ous devices for public interven- 469, “The English criminal proce- tion. . . . The public prosecutor lthough almost all criminal dure developed its traditional ac- has no greater advantages than A prosecutions are cur- cusatory characteristics largely any private solicitor or barrister rently conducted by public pros- because it relied upon a system prosecuting a case on behalf of ecutors, there is a long-standing of private prosecution. . . . In the a client.”

AntiShyster Volume 10, No. 1 www.antishyster.com [email protected] 972-418-8993 57 Brunswick, the defendant moved attorneys in civil suits filed oday, the forms of crimi- to dismiss. District Court Judge J. against petitioner arising out of Tnal procedure are the Debevoise held that: a traffic accident which produced same for both public and private (1) Municipal Court Rule 7:4- both criminal charges and civil prosecutions; they differ only in 4(b) allowing state to prosecute actions. In their appeal, attorneys the official status and source of defendant through use of private for petitioner cited Ganger v. compensation of the prosecutor. attorney was applicable even Peyton7 (1967), in which private Most of the cases of private pros- upon removal to federal court, prosecution was disallowed. ecution that we’ve found in the and However, in that case, the federal courts were conducted (2) the private attorney who Commonwealth’s attorney who by private attorneys who also prosecuted the case did not have prosecuted Ganger in his criminal represented the victim in a civil a conflict of interest that violated case for an assault against his action against the accused. defendant’s constitutional right wife was at the same time repre- The first of these federal to due process. In its opinion the senting Ganger’s wife in a divorce cases was State of New Jersey v. Court stated that “there is no proceeding. Ganger testified that William Kinder (1988).1 A private provision of the ederal Rules of the prosecuting attorney offered complainant instituted a criminal Criminal Procedure which conflicts to drop the assault charge if case against the defendant by with its provisions”. Ganger would make a favorable charging him with simple assault Another case was Wesley property settlement in the di- and battery under the authority Irven Jones, Appellant, v. Jerry E. vorce action. On the basis of that of New Jersey Municipal Court Richards, Sheriff of Burke County, testimony, it was decided that Rule 7:4-4(b), which provides in N.C.6 (1985). On an appeal of a Ganger’s prosecutor “was not in part, “any attorney may appear on petition for habeas corpus de- a position to exercise fair-minded behalf of any complaining witness nied, Circuit Judge Chapman held judgment” in the conduct of the and prosecute the action on be- that no constitutional right was case. half of the state or the municipal- impaired by involvement of the In North Carolina, the use of ity”. After removing the case from same attorneys as prosecutors in private attorneys to assist the the Municipal Court of New a criminal trial and as plaintiff’s state in the prosecution of crimi- nal cases “has existed in our courts from their incipiency,” State v. Best8 (1972), and such use Learn to secure your unalienable Rights! in a particular case is committed SRTG is a private membership society founded upon natural law prin- to the discretion of a trial judge. 9 ciples that acknowledge individual freedom and rights. These rights are State v. Lippard (1943). However, protected through the institutions of private property, absolute right to when private attorneys are em- contract, and voluntary assent in all human relationships. SRTG offers: ployed, the district attorney must Cady, Jeff 101PAID 1/3 10K remain in charge of and be re- l Syndicate 300 — Financial Responsibility Indemnification Services sponsible for the prosecution, for Auto, Business, Home, Marine, Renters & Title. State v. Page10 (1974). Other states provide for pri- l Seychelles Management Assoc. – Independent Contractor Service vate prosecutors by statute. In to teach people how to operate in independent manner in order to Texas, Vernon’s Annotated secure their unalienable Rights without governmental assistance. Texas C.C.P. art. 2.07(a) [Attor- l SRTG – Education on history, law, philosophy and religion to help ney pro tem] provides that those who avoid the public school system to become independent “Whenever an attorney for the by relearning responsibility and logical independence. state is disqualified to act in any case or proceeding, is absent All of our services are independent of government contracts (licensing, from the county or district, or is etc.) — your privacy is assured. Call or write today! otherwise unable to perform the duties of his office, or in any in- SRTG stance where there is no attor- 1702 West Camelback Road Suite 13, # 267 ney for the state, the judge of the Phoenix [85015] Arizona court in which he represents the state may appoint any competent (602) 433-7997 fax (602) 433-9119 www.volitionfmcc.com attorney to perform the duties of

58 AntiShyster Volume 10, No. 1 www.antishyster.com [email protected] 972-418-8993 the office during the absence or disqualification of the attorney for American Patriot Needs Help! the state.” However, by Op.Atty.Gen. 1990, JM-925, a dis- I have fought for years against the Ungodly who, today, al- trict judge is authorized to ap- most totally control America. Because I’ve fought corruption, point a district attorney pro tem our government has charged me with several felony indictments pursuant to the above article in a U.S. District Court. I, and others, believe these charges even though there is an assistant were filed to shut me up. Budrow, 101PAID 1/3 page 5K district attorney in place. In Davis It’s time for us to reclaim God’s country — which He or- v. State11 (1992), it was held that dained for us — and live under God’s laws and not man’s laws. appointment of a special pros- God’s warnings are coming to pass; they are being fulfilled ev- ecutor was within the discretion ery day. This is our last chance to stand up for God before God’s of trial courts, and that such ap- second and final coming. pointment is not predicated on My most precious possession is my soul that God gave me. If the absence or disqualification of we sacrifice our souls to survive in this world, on judgement elected district attorney. day, God states, “He will know us not”. The cost for my upcoming court trial will exceed $l00,000. owever, some State As one of God’s children, I am asking for any donations you can H courts have invalidated afford to send to me, to offset the cost of my upcoming trial and criminal prosecutions by private defense. attorneys for cases involving se- Let us all join together and create a united house and fight rious crimes and those involving God’s unholy evil enemies. We will then be blessed by our God. situations where a public pros- God bless all who have eyes to see and ears to hear. To para- ecutor has expressly refused to phrase Patrick Henry, “give me God’s liberty or give me death”. prosecute the defendant. See Celeste C. Leone e.g., State v. Harton2 (1982) (pro- POB 475 Riverside, Connecticut 06878-0475 hibiting private prosecution for vehicular homicide absent con- was charged with a criminal of- County, N.C.; Rufus L. Edmisten, sent and oversight of the district fense arising out of the same oc- Attorney General, State of North attorney); State ex rel. Wild v. Otis3 currence). Carolina, Appellees, 776 .2d (1977) (where county attorney Nevertheless, the possibility 1244 (4th Cir.1985) refused to prosecute and grand remains that, with proper re- 7 Ganger v. Peyton, 379 .2d jury refused to indict on charges search and preparation, private 709 (4th Cir.1967) of perjury, conspiracy, and cor- individuals may be able to pros- 8 State v. Best, 280 N.C. 413, ruptly influencing a legislator, pri- ecute criminal cases which the 186 S.E.2d 1, 3 (1972) vate citizen could not prosecute “system” might prefer to ignore. 9 State v. Lippard, 223 N.C. and maintain such charges; dicta 167, 25 S.E.2d 594, 599, cert. suggests that this might be per- denied, 320 U.S. 749, 64 S.Ct 52, missible with legislative approval 1 State of New Jersey v. 88 L.Ed. 445 (1943). and court-appointed private at- William Kinder 701 .Supp. 486 10 State v. Page, 22 N.C. App. torney as prosecutor); see also, (D.N.J.1988). 435, 206 S.E.2d 771, 772 cert. Commonwealth v. Eisemann4 2 State v. Harton, 163 Ga. denied, 285 N.C. 763, 209 S.E.2d (1982) (Pennsylvania Rules of Civil App. 773, 296 S.E.2nd 112 (1982) 287 (1974). Procedure require that a person 3 State ex rel. Wild v. Otis, 257 11 Davis v. State (App. 12 who is not a police officer must N.W.2nd 361 (Minn.1977), appeal Dist.1992) 840 S.W.2d 480. get the district attorney’s ap- dismissed, 434 U.S. 1003, 98 S.Ct. proval to file felony or misde- 707, 54 L.Ed.2nd 746 (1978) meanor charges which do not 4 Commonwealth v. Eisemann, Write to Jon Roland via Email involve a clear and present dan- 308 Pa.Super. 16, 453 A.2nd at [email protected], or ger to the community); People ex 1045 (1982) visit his Web site at http:// rel. Luceno v. Cuozzo5 (City Court, 5 People ex rel. Luceno v. www.constitution.org/ White Plains 1978) (“exercising its Cuozzo, 97 Misc.2nd 871, 412 discretion,” court prohibits private N.Y.S.2nd 748 criminal prosecution against po- 6 Wesley Irven Jones, Appellant, lice officer where complainant v. Jerry E. Richards, Sheriff of Burke

AntiShyster Volume 10, No. 1 www.antishyster.com [email protected] 972-418-8993 59