Private Prosecutors: Rudder of Ship of State

Let’s Revive Prosecutions
Brief on Private Prosecutions

Private prosecutions used to be the norm. The case discussed at involved a debate on whether it was not better not to have a private prosecution done by an injured party, but by someone more detached. In my proposal that would be decided by the grand jury, which I also propose would not be subject to being overridden by a court, but would stand outside all courts.

It has been objected that private prosecutors might not comply with Brady rules for the disclosure of exculpatory evidence.

The Brady rules only work now if the prosecutors get caught violating them, and when they do there are seldom any repercussions other than an embarrassing reversal on appeal. The court of inquiry against former prosecutor Ken Anderson in Williamson County, Texas, that I previously shared a report on, is highly unusual. What is needed is discovery conducted by the defense on what the prosecutor has, which admittedly may reveal more than the prosecutor wants to disclose about investigatory sources and methods.

I am not proposing complete replacement of the current system of public prosecutors with private prosecutors. The high costs of investigation and prosecution put that out of reach of most private parties, although I foresee that private foundations will arise to provide the resources in selective cases. The traditional method in the early republic was “subscription”, in which the would-be prosecutor advertised for donors and passed the hat among citizens. That usually worked, although not always.

It can be expected that when public prosecutors are doing their jobs, few private prosecutions will be pursued. It is when they become corrupt and abusive that private prosecutions are needed and under my proposal, would become more frequent.

Filtering out private vendettas is what the grand jury is for. That was one of its major tasks from the outset, going back to the time of Edward Coke. The present system of public prosecutors is certainly not free of personal vendettas. Indeed, that is one of the ways abuse is happening. It just doesn’t provide a way to control it when grand juries have been brought under the control of the public prosecutors.

The simple fact is that there is no real possibility of government officials controlling the abuses of other officials over the long term. That might work for a few shining moments, but it is not sustainable, and once entrenched, corruption can be almost impossible to overcome. The only way to hold officials accountable is to allow private parties from outside the system to effectively intervene, and if the result becomes a tad anarchic, that is not too high a price to pay for accountability.

If you are going to call for accountability, then you need to accept the only proposal that might actually accomplish that in practice, and not just make aspirational statements that come down to demands that officials behave themselves better.

One of the problems with public prosecutors is that people tend to be less skeptical about the arguments and evidence they might present. They are invested with an aura of authority and respectability that leads both grand and trial juries to go along with them.

Now suppose a would-be private prosecutor files his bill of indictment with a grand jury. Knowing it is a private prosecutor, one would expect the grand jury to be more skeptical, both about the evidence and about the fitness of the complainant to prosecute. If it is convinced the evidence is sufficient, it might still doubt the court it serves has jurisdiction, and no-bill. If it is independent of a court, it could return the bill but also pick the court having jurisdiction. And if it had doubts about the fitness or resources of the complainant to prosecute, it could pick someone else to prosecute. That could be the public prosecutor if he convinced them he was willing, or perhaps some lawyer in the community who convinced them he was prepared to do the job well.

Now suppose the private prosecutor gets before the trial jury. They will know he is not a public prosecutor, even though he appears in the name of the sovereign, as a private attorney general. They might presume that a public prosecutor would never make invalid legal arguments or present witnesses he knew were lying, but would they presume that for a private prosecutor? We can expect they would not.

I submit that almost all of those miscarriages of justice you cited might not have happened had the prosecutors been private. First, because a private prosecutor would probably not have pursued them, and second because judge and jury would apply stricter standards of scrutiny on his conduct during the trial.

Only the government is going to invest the resources needed to prosecute me to get my guns. There is a small chance that private groups will prosecute government misconduct, because that is the one area with a high enough impact on private parties to get them to invest the needed resources.

And note that a false prosecution can itself be prosecuted. Malicious prosecution and abuse of process is not just about civil cases. A private prosecutor would be taking a risk if he didn’t do everything right. More of a risk than is incurred by a public prosecutor as the system works today.

Finally, there is just no other alternative to private prosecution to hold public officials accountable. If you want accountability, that is the only course open.

We can also expect that in a completely private prosecutorial system, there would emerge a pool of competing private prosecution firms who would compete for the business of prosecution, so that the grand jury could become a commission for awarding contracts to them, based on their bid amounts and reputations.

-- Jon

Constitution Society     
2900 W Anderson Ln C-200-322 
Austin, TX 78757 512/299-5001

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