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In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane

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SJ Quinney College of Law, University of Utah Utah Law Digital Commons Utah Law Faculty Scholarship Utah Law Scholarship 10-2018 In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 : Petition for Appointment of Prosecutor Pro Tempore Paul Cassell S.J. Quinney College of Law, University of Utah, [email protected] Heidi Nestel Utah Crime Victims' Legal Clinic Bethany Warr Utah Crime Victims' Legal Clinic Margaret Garvin Defense Advisory Committee on Investigation, Prosecution, and Defense or Sexual Assault in the Armed Forces (DAC-IPAD) Gregory Ferbrache Ferbrache Law, PLLC See next page for additional authors Follow this and additional works at: https://dc.law.utah.edu/scholarship Part of the Criminal Law Commons Recommended Citation Cassell, Paul; Nestel, Heidi; Warr, Bethany; Garvin, Margaret; Ferbrache, Gregory; and Hanni, Aaron H., "In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 : Petition for Appointment of Prosecutor Pro Tempore" (2018). Utah Law Faculty Scholarship. 134. https://dc.law.utah.edu/scholarship/134 This Brief is brought to you for free and open access by the Utah Law Scholarship at Utah Law Digital Commons. It has been accepted for inclusion in Utah Law Faculty Scholarship by an authorized administrator of Utah Law Digital Commons. For more information, please contact [email protected]. Authors Paul Cassell, Heidi Nestel, Bethany Warr, Margaret Garvin, Gregory Ferbrache, and Aaron H. Hanni This brief is available at Utah Law Digital Commons: https://dc.law.utah.edu/scholarship/134 Original Action No. _________-SC IN THE SUPREME COURT OF THE STATE OF UTAH __________________ IN RE: PETITION FOR APPOINTMENT OF A PROSECUTOR PRO TEMPORE BY JANE DOE 1, JANE DOE 2, JANE DOE 3, AND JANE DOE 4 __________________ PETITION FOR APPOINTMENT OF PROSECUTOR PRO TEMPORE __________________ On Original Jurisdiction to the Utah Supreme Court __________________ Paul G. Cassell (6078) UTAH APPELLATE CLINIC S.J. Quinney College of Law at the University of Utah 383 S. University St. Salt Lake City, Utah 84112 (801) 585-5202 [email protected] Heidi Nestel (7948) Bethany Warr (14548) UTAH CRIME VICTIMS’ LEGAL CLINIC 3335 South 900 East, Suite 200 Salt Lake City, Utah 84106 [email protected] [email protected] Attorneys for Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 Additional counsel on the following page __________________ Full Briefing and Oral Argument Requested on State Constitutional Law Issues of First Impression Additional Counsel Margaret Garvin (Oregon Bar 044650) NATIONAL CRIME VICTIM LAW INSTITUTE at the Lewis and Clark Law School 1130 S.W. Morrison Street, Suite 200 Portland, Oregon 97205 [email protected] (pro hac vice application to be filed) (law schools above are contact information only – not to imply institutional endorsement) Gregory Ferbrache (10199) FERBRACHE LAW, PLLC 2150 S. 1300 E. #500 Salt Lake City, Utah 84106 [email protected] (801) 440-7476 Aaron H. Smith (16570) STRONG & HANNI 9350 South 150 East, Suite 820 Sandy, Utah 84070 [email protected] (801) 532-7080 Attorneys for Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 Table of Contents INTRODUCTION ............................................................................................................. 1 THIS COURT POSSESSES ORIGINAL JURISDICTION OVER THE PETITION .......................................................................................................................... 2 RELEVANT CONSTITUTIONAL PROVISIONS .......................................................... 3 THE JANE DOES ARE ENTITLED TO PROCEED BY WAY OF PSEUDONYM ................................................................................................................... 4 FACTS RELEVANT TO THE PETITION ....................................................................... 6 I. The Rape of Jane Doe 1 and the Non-Prosecution of Her Rapist. ............... 7 A. The Rape of Jane Doe 1. ................................................................... 7 B. The Rape of Jane Doe 1 Is a Felony Crime Under the Utah Criminal Code. .................................................................................. 9 C. The Public Prosecutor Has Refused to Prosecute the Crimes Committed Against Jane Doe 1. ..................................................... 10 II. The Rapes of Jane Doe 2 and the Non-Prosecution of Her Rapist. ........... 11 A. The Rapes of Jane Doe 2. ............................................................... 11 B. The Rapes of Jane Doe 2 Are Felony Crimes Under the Utah Criminal Code. ................................................................................ 15 C. The Public Prosecutor Has Refused to Prosecute the Rapes Committed Against Jane Doe 2. ..................................................... 15 III. The Rape of Jane Doe 3 and the Non-Prosecution of Her Rapist. ............. 15 A. The Attacks on Jane Doe 3. ............................................................ 15 B. The Attacks on Jane Doe 3 Are Felony Crimes Under the Utah Criminal Code. ....................................................................... 18 C. The Public Prosecutor Has Refused to Prosecute the Rapes Committed Against Jane Doe 3. ..................................................... 18 IV. The Sexual Assault of Jane Doe 4 and the Non-Prosecution of Her Molester. .................................................................................................... 19 i A. The Sexual Assault of Jane Doe 4. ................................................. 19 B. The Sexual Assault Against Jane Doe 4 Is a Felony Crime Under the Utah Criminal Code. ...................................................... 21 C. The Public Prosecutor Has Refused to Prosecute the Sexual Assault Against Jane Doe 4. ........................................................... 21 ARGUMENT ................................................................................................................... 22 I. The Court Should First to Determine the Meaning of the Relevant Utah Constitutional Provisions Without Reference to Federal Law. ......... 23 II. Article VIII, Section 16 of the Utah Constitution Reflects a Long- Standing Tradition of Victim-Initiated Prosecution in America. .............. 26 A. America’s Criminal Justice System Initially Relied on a System of Victim-Initiated Prosecution. ......................................... 26 B. The Utah Constitutional Convention Specifically Drafted Article VIII, Section 16 to Preserve Victim-Initiated Prosecutions in Utah. ...................................................................... 31 C. From 1898 Through Much of the Twentieth Century, a Victim Had a Statutory Right to Seek to Initiate a Criminal Prosecution. ..................................................................................... 38 D. The 1984 Amendment to Article I, Section 16 Continued to Protect a Utah Constitutional Right for Victims to Seek a Court-Appointed Prosecutor. .......................................................... 41 III. This Court Should Use Its Power under the Court-Appointed Prosecutor Provision When a Public Prosecutor Fails or Refuses to Prosecute a Criminal Charge that is Clearly Supported by Probable Cause and Where Nothing Indicates that the Appointment Would Be Contrary to the Public Interest. .................................................................. 45 A. The Only Textual Requirement for Appointment of a Prosecutor Under Article VIII, Section 16 is a Showing that a Public Prosecutor Has Failed or Refused to Prosecute. .................. 45 B. Article VIII, Section 16 Contains an Implicit Probable Cause Requirement for the Court to Appoint a Prosecutor. ...................... 52 ii C. The Court Can Consider Interests of Justice Under Article VIII, Section 16 in Appointing a Prosecutor. ................................. 55 D. The Victims’ Rights Amendment, Utah Const., art. I, § 28, Supports Interpreting the Court-Appointed Prosecutor Provision to Allow Prosecutions that Promote Fairness to the Victim. ............................................................................................ 58 IV. Under Article VIII, Section 16, This Court Should Evaluate Whether to Appoint a Prosecutor Based on Merits of the Proposed Prosecution Rather than Evaluating the Previous Declination of the Public Prosecutor. ...................................................................................... 61 A. This Court’s Memorandum Order in In re Hunting Mentioning an Abuse of Discretion Standard is Not Controlling Precedent on this Issue. ............................................... 62 B. If In re Hunting is Precedential, It Should Now be Reconsidered Based on Full Briefing and Argument. .................... 65 C. Article VIII, Section 16 Does Not Require Judicial Evaluation of the Merits of Adequacy of a Prosecutor’s Declination Decision. ......................................................................................... 66 D. If Article VIII, Section 16 Requires Evaluation of the Adequacy of a Prosecutor’s Decision, the Jane Does Are Entitled to Discovery Regarding the Basis of the Prosecutor’s Decision. ......................................................................................... 73 V. The Court-Appointed Prosecution Provision Represents Utah’s Unique Solution to the Well-Recognized Problem of Under- Prosecution. ...............................................................................................
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