Chapter 10

• Jurisdiction: United States

Chapter 10 The Prosecutor's Role

Evolution

Today's prosecutors are public servants, considered to be the principal actors in the criminal justice system. However, this is a comparatively recent phenomenon. In the older big cities, the institution of public prosecution is less than 100 years old.⁴⁰ Disagreement exists about the origins of the American prosecutor's role as we now know it. Historians have traced the American prosecutor model back to either the English magistracy, the French office of public prosecutor (as a backlash against the English after the Revolution), the Dutch (the "schout" or "sheriff" in the Dutch colony of New Netherlands), or a mixture (the English private and police prosecution system coexisting alongside the Dutch public prosecution system).

The criminal justice system in the American colonies was originally patterned after the English system that had no public prosecutor. While, like the English, the American attorneys general could represent the Crown in both civil and criminal cases, most criminal prosecutions were left up to the victim.

This approach was ill-suited to the colonies because of the cost of prosecution, distances between settlements, and the ability of moneyed offenders to settle their cases. By the time of the American Revolution, each colony had adopted some system of public prosecution. When states were formed, county attorneys often prosecuted crimes under state law and city attorneys prosecuted crimes under town ordinances.

However, this did not put an end to private prosecution. J. Anthony Lukas's Big Trouble: A Murder in a Small Western Town Sets Off a Struggle for the Soul of America⁴¹ gives an account of private prosecution at the start of the twentieth century. On Christmas day, 1905, the former governor of Idaho was assassinated by a bomb that had been planted at his garden gate. Young Clarence Darrow represented union leader "Big Bill" Haywood, who was charged with the murder. Darrow gained an acquittal for his client.

Prosecutors for the Haywood case were William Borah and Jim Hawley. In response to a newspaper reporter's question about whether Hawley had been retained as a private prosecutor in the interests of some individual or corporation, he responded, "No sir. I was retained by the state of Idaho to assist O.M. Van Duyn of Canyon County in the prosecution of these cases. I am not in the employ of any private individual or corporation. If that were the case, I would not hesitate to say so, for the statute provides that any private party or corporation interested in a prosecution of this nature may employ an attorney, providing the prosecuting attorney is willing to accept such assistance. I am, however, strictly in the employ of the state, and my retainer comes from no other source whatever."

Regarding Hawley's statement, Lucas, the author of Big Trouble, wrote, "As for the legality of this practice, Hawley's claim that it was explicitly authorized by an Idaho statute went beyond the facts. In 1906, there was no state statute that held, in Hawley's words, that 'any private party or corporation interested in a prosecution of this nature may employ an attorney.' The practice of hiring private counsel to assist prosecutors was an old one in the West, where it was rare to find competent prosecuting attorneys at the county level and where the mixture of public functions and private interest was endemic. In 1884, a California court noted that the practice 'had existed and been acquiesced in almost since the organization of the state.' Two highly publicized cases pitting sheepmen against cattlemen—the Diamondfield Jack case in Idaho and the Spring Creek raid case in Wyoming—sheepmen made no secret of hiring and amply remunerating private attorneys to go after their sworn enemies, the cattlemen and their agents. The more remote the locale, the more visible the case, the more potent the colliding forces, and the more celebrated the defense attorneys, the more often another celebrated attorney would be called in to act for the prosecution—paid sometimes by the state, sometimes by an interested corporation or association." Lucas added in a footnote, "In southern states, when a black man was charged with raping a white woman it was long the practice for the family of the 'victim,' bent on revenge, to provide the prosecutor."⁴²

The modern American public prosecutorial model is in sharp contrast to English counterpart private prosecution. In criminal matters, the English Director of Public Prosecution is the Crown's solicitor who farms out the prosecution responsibility to Barristers who may on another day serve as defense counsel. At least one former Assistant District Attorney, Joseph Lawless Jr. argued that the British private prosecutor approach is better because longevity in the American prosecutor post manifests itself in an "almost universal predilection to convict at all costs" and "breeds indifference to individual rights and cultivates only predisposition for conviction."⁴³

In 1987, the U.S. Supreme Court has declared that private counsel serving as an American prosecutor may not have a direct...