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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Describe the prosecutor’s role, prosecutor’s discretion, and the issues surrounding prosecutorial misconduct.

� Explain the concept of joinder and reasons for it. � Explain the purpose, functions, and powers of a grand jury. � Outline the development of the right to counsel. � Be familiar with the courtroom workgroup and its functions.

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CHAPTER OUTLINE

Prosecutors, Grand Juries, and Defense Attorneys

C H

A P

T E

R

OUTLINE

Introduction: Bringing Charges and Mounting a Defense

The Prosecutor The Charging Decision

Deciding Not to Prosecute Challenging the Decision Not to Prosecute

Restrictions on Bringing Charges Unfair and Selective Prosecution Vindictive Prosecution

Dealing with Overzealous Prosecutors Recourse

Joinder Multiple Charges against the Same Individual Charges against Multiple Defendants

The Grand Jury How a Grand Jury Is Constructed

Duration Size Voting Requirements Selection of Members

Secrecy of Grand Jury Proceedings Disclosure of Witness Testimony to the Defense Disclosure of Witness Testimony to Other Parties

Rights of Witnesses Testifying before Grand Juries Right to Testify Being Advised of the Right Not to Testify Right to Counsel

Investigative Powers of the Grand Jury Subpoenas Grants of Immunity Findings of Contempt

Challenging a Grand Jury Indictment The Defense Attorney

The Right to Counsel in a Criminal Prosecution Due Process Origins The Contemporary Sixth Amendment

Approach The Right to Counsel at Other Stages

of the Criminal Process The Sixth Amendment Approach The Fifth Amendment Approach The Due Process Approach

Waiver of the Right to Counsel Indigent versus Nonindigent Defendants’ Right

to Counsel of Their Choice Effective Assistance of Counsel

When the Right Applies The Meaning of Effective Assistance

The Courtroom Work Group Summary Key Terms Key Cases Review Questions Web Links and Exercises

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338 Part 4 • The Beginnings of Formal Proceedings

INTRODUCTION

Bringing Charges and Mounting a Defense

This chapter turns attention to the roles of the prosecutor, grand jury, and defense attorney. In a way, this chapter does not flow directly from the preceding chapter; for example, the right to counsel attaches to varying degrees well before the pretrial process is set into motion. Similarly, when the services of the grand jury are required, it can perform an investigative function well before the arrest stage of the criminal process. Prosecutors, too, perform a great deal of work before the pretrial process. Nevertheless, the functions of all three parties will be considered here for the sake of an orderly presentation. Just understand that the prosecutor, grand jury, and defense attorney do not necessarily enter the picture after the pretrial process has commenced.

This chapter begins by focusing on the prosecutor and, in particular, the decision whether or not to charge. In this vein, this chapter also introduces restrictions on the prosecutor’s charging decision as well as the notion of joinder. Most of the discussion will be limited to the prosecutor’s role leading up to a criminal trial. To delve into the prosecutor’s role at trial (e.g., the order and method by which the state’s case is presented) would take the discussion into another area. The prosecutor’s role at trial is best understood in terms of the law of evidence, a topic not typically taken up in criminal procedure class.

Next, this chapter turns attention to the grand jury. The function of the grand jury is a source of some confusion to criminal procedure students. As such, the role of the grand jury is considered in detail, particularly when a grand jury is required and what roles it performs. This chapter also discusses the secrecy of grand juries, the rights of witnesses testifying before grand juries, and the various methods for challenging indictments. As with the section on the prosecutor, the grand jury section of this chapter is pretrial in nature. Indeed, the grand jury’s function ceases once the charging decision has been made.

Finally, this chapter turns to the role of the defense attorney in criminal procedure. The Fourth Amendment and interrogation sections of this text have already discussed the function of defense counsel at various stages of the criminal process. Those functions are revisited briefly in this chapter, but the focus is primarily on the defense attorney’s role at trial. The bulk of the defense attorney section of this chapter concerns the accused’s right to effective assistance of counsel. This chapter also discusses the waiver of counsel and the distinctions between privately retained counsel and public defenders. It concludes with some attention to the so-called courtroom work group.

THE PROSECUTOR

The prosecutor performs a valuable function in reinforcing the notion that a crime is an offense against the state. In fact, Article II, Section 3, of the U.S. Constitution states that the executive branch of the federal government “shall take Care that the Laws be faith- fully executed.” This constitutionally mandated duty to execute the law usually falls on prosecutors. Of course, police officers, as part of the executive branch, do their part to execute the laws, but a strong argument can be made that prosecutors possess even more authority because of their ability to decide whether to bring formal charges against suspected criminals.

Just as police officers have the discretion to decide whether to make an arrest, so, too, do prosecutors have enormous discretion. As the Supreme Court noted in Bordenkircher v.

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Chapter 11 • Prosecutors, Grand Juries, and Defense Attorneys 339

Hayes (434 U.S. 357 [1978]), “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely on his discretion” (p. 364). Figure 11.1 presents portions of a federal prosecutor’s charging document (a.k.a., “information”).

Prosecutors do not have unlimited discretion, however. There are important restrictions on their decision to charge. Some stem from the Constitution, while others stem from statutes and other related sources.

FIGURE 11.1 Portions of a Federal Prosecutor’s Charging Document (Information)

United States District Court Northern District Of Illinois

Eastern Division

COUNT ONE

The UNITED STATES ATTORNEY charges:

1. At times material to this information: a. Defendant ANTHONY MATTHEWS owned and controlled Express Mortgage,

a licensed Illinois mortgage brokerage located on Wabash Street and on Western Boulevard in Chicago, Illinois.

b. Bank One was a financial institution, the deposits of which were insured by the Federal Deposit Insurance Corporation (“FDIC”). Wells Fargo Home Mortgage was a subsidiary of Wells Fargo Bank.

c. MIT Lending and St. Francis Mortgage were mortgage companies engaged in the business of issuing mortgage loans for the purchase of residential property.

2. Beginning no later than 2003 and continuing through at least 2006, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere,

ANTHONY MATTHEWS,

defendant herein, together with other co-schemers known to the United States Attorney, devised, intended to devise, and participated in a scheme to defraud and to obtain money by means of materially false and fraudulent pretenses, representations, and promises, which scheme affected financial institutions. More specifically, defendant schemed to fraudulently obtain over $1 million in mortgage loan proceeds from various banks and mortgage lending institutions, including Bank One, Wells Fargo Bank. MIT Lending. St. Francis Mortgage and Wells Fargo Home Mortgage, among others (hereinafter referred to collectively as “lenders”), as described below.

Source: http://www.usdoj.gov/usao/iln/pr/chicago/2008/pr0619_01i.pdf (accessed November 7, 2008).

UNITED STATES OF AMERICA ) )

v. ) No._____ )

ANTHONY MATTHEWS ) Violations: Title 18, United States Code, ) Section 1343

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340 Part 4 • The Beginnings of Formal Proceedings

The Charging Decision

The prosecutor generally has the authority to decide whether to proceed with charges. This is known as prosecutorial discretion. He or she can elect not to charge for a number of reasons, even over strenuous objection on the part of the complainant or victim. The prosecutor’s discretion can be further manifested by the act of plea bargaining (see Chapter 12); that is, he or she can accept a guilty plea for a lesser offense than the one charged. Finally, prosecutors sometimes have to answer to authorities that mandate, or at least strongly encourage, prosecution.

DECIDING NOT TO PROSECUTE The most obvious reason for nonprosecution is lack of evidence. The prosecutor may determine that, based on the evidence presented to him or her by the police, the suspect is innocent. In such an event, there would be no point in proceeding to trial on the slight chance that a conviction would be obtained. Even if the prosecutor believes the suspect is guilty, if there is not enough evidence to obtain a conviction, then he or she will likely elect not to prosecute.

There are other reasons not to prosecute, as well. For example, even if the state’s case is strong, there may be an incentive not to prosecute. In particular, if it appears the defense’s case is stronger, then it may behoove the prosecutor to proceed with charges against a different individual.

Nonetheless, prosecutors are human and, as such, can be influenced by the facts of a particular case. Say, for instance, that a law mandates life in prison for growing in excess of 1,000 marijuana plants. Assume further that a suspect apprehended for violating such a law has a spotless record, is married, and has four children. Would life in prison be the best punishment for such an individual, or would a fine community service or other sanction be more appropriate? This decision is up to the prosecutor, and depending on the nature of the case, he or she may elect not to proceed with charges.

As another example, California’s “three strikes” law requires life in prison for third-time felons. The first two felonies that qualify as “strikeable” under California’s law can only be of certain varieties; typically, they are serious offenses. However, the third felony can be of any type. Critics of California’s “three strikes” law often point to the man who was sentenced to prison for life for stealing a slice of pizza. Had the prosecutor who charged this individual been more sensible in exercising his or her discretion, then public outcry may not have been so significant.

Another reason for not charging traces to economic concerns. Simply put, it is not possible, given the resource restrictions that exist in most public agencies (prosecutors’ offices included), to proceed with charges against every suspect. Not

DECISION-MAKING EXERCISE 11.1

Reasons for Nonprosecution

Another controversial reason for nonprosecution is a by-product of the United States’ so-called war on drugs. Civil asset forfeiture statutes permit the forfeiture of money and property tied to criminal activity—most frequently, the illicit drug trade. Many asset forfeiture statutes permit forfeited proceeds to go to the executive branch, which usually means the police but sometimes prosecutors. Some have argued that when there is not enough evidence to proceed with a criminal case, prosecutors can opt to pursue civil forfeiture,

for which the burden of proof is generally lower. And as an added bonus, if a forfeiture action succeeds and a person’s property is forfeited to the state, then the prosecutor may reap a financial reward for selecting a civil proceeding instead of a criminal one. Is the possibility of civil asset forfeiture a legitimate reason not to prosecute? That is, if a prosecutor chooses not to press criminal charges against someone, instead opting for forfeiture, should the decision be considered constitutional?

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Chapter 11 • Prosecutors, Grand Juries, and Defense Attorneys 341

having the time to build a case because of a high caseload may effectively force a prosecutor to be lenient with certain individuals.

CHALLENGING THE DECISION NOT TO PROSECUTE A prosecutor’s decision not to press charges is rarely challenged, but on occasion, higher authorities may get involved when they disagree with a prosecutor’s decision. Failure to press charges can sometimes be questioned by a court, which can provide relief to individuals who disagree with the prosecutor’s decision (e.g., NAACP v. Levi, 418 F. Supp. 1109 [D.D.C. 1976]). Other times, a prosecutor’s supervisor or other high-ranking official may step in. According to one source, “Many states by statute confer upon the attorney general the power to initiate pros- ecution in cases where the local prosecutor has failed to act. In practice, however, attorneys general have seldom exercised much control over local prosecuting attorneys.”1

Another way of preventing prosecutors from abusing their discretion (i.e., by failing to act) is to require them to abide by standards of conduct. These standards help prosecutors decide which cases are worthy of prosecution as well as what charges to pursue, all the while ensuring that they act in accordance with the law. Figure 11.2 presents portions of the Code of Conduct for Judicial Employees, published by the Administrative Office of the U.S. Courts.

Some U.S. jurisdictions require court approval of a prosecutor’s decision not to pursue charges. The prosecutor is typically required to explain to the court in writing his or her reasons for failing to prosecute. While this approach may seem sensible on its

1 Y. Kamisar, W. LaFave, and J. Israel, Modern Criminal Procedure, 9th ed. (St. Paul, MN: West, 1999), p. 894.

FIGURE 11.2 Code of Conduct for Judicial Employees

A. Code of Conduct for Judicial Employees.

CANON 1: A JUDICIAL EMPLOYEE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY AND OF THE JUDICIAL EMPLOYEE’S OFFICE

An independent and honorable Judiciary is indispensable to justice in our society. A judicial employee should personally observe high standards of conduct so that the integrity and independence of the Judiciary are preserved and the judicial employee’s office reflects a devotion to serving the public. Judicial employees should require adherence to such standards by personnel subject to their direction and control. The provisions of this code should be construed and applied to further these objectives. The standards of this code shall not affect or preclude other more stringent standards required by law, by court order, or by the appointing authority.

CANON 2: A JUDICIAL EMPLOYEE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

A judicial employee should not engage in any activities that would put into question the propriety of the judicial employee’s conduct in carrying out the duties of the office. A judicial employee should not allow family, social, or other relationships to influence official conduct or judgment. A judicial employee should not lend the prestige of the office to advance or to appear to advance the private interests of others. A judicial employee should not use public office for private gain.

Figure 11.2 continued

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342 Part 4 • The Beginnings of Formal Proceedings

CANON 3: A JUDICIAL EMPLOYEE SHOULD ADHERE TO APPROPRIATE STANDARDS IN PERFORMING THE DUTIES OF THE OFFICE

In performing the duties prescribed by law, by resolution of the Judicial Conference of the United States, by court order, or by the judicial employee’s appointing authority, the following standards apply:

A. A judicial employee should respect and comply with the law and these canons. A judicial employee should report to the appropriate supervising authority any attempt to induce the judicial employee to violate these canons.

Note: A number of criminal statutes of general applicability govern federal employees’ performance of official duties. These include:

18 U.S.C. § 201 (bribery of public officials and witnesses);

18 U.S.C. § 211 (acceptance or solicitation to obtain appointive public office);

18 U.S.C. § 285 (taking or using papers relating to government claims);

18 U.S.C. § 287 (false, fictitious, or fraudulent claims against the government);

18 U.S.C. § 508 (counterfeiting or forging transportation requests);

18 U.S.C. § 641 (embezzlement or conversion of government money, property, or records);

18 U.S.C. § 643 (failing to account for public money);

18 U.S.C. § 798 and 50 U.S.C. § 783 (disclosure of classified information);

18 U.S.C. § 1001 (fraud or false statements in a government matter);

18 U.S.C. § 1719 (misuse of franking privilege);

18 U.S.C. § 2071 (concealing, removing, or mutilating a public record);

31 U.S.C. § 1344 (misuse of government vehicle);

31 U.S.C. § 3729 (false claims against the government).

In addition, provisions of specific applicability to court officers include:

18 U.S.C. § § 153,154 (court officers embezzling or purchasing property from bankruptcy estate);

18 U.S.C. § 645 (embezzlement and theft by court officers);

18 U.S.C. § 646 (court officers failing to deposit registry moneys);

18 U.S.C. § 647 (receiving loans from registry moneys from court officer).

This is not a comprehensive listing but sets forth some of the more significant provisions with which judicial employees should be familiar.

B. A judicial employee should be faithful to professional standards and maintain competence in the judicial employee’s profession.

C. A judicial employee should be patient, dignified, respectful, and courteous to all persons with whom the judicial employee deals in an official capacity, including the general public, and should require similar conduct of personnel subject to the judicial employee’s direction and control. A judicial employee should diligently discharge the responsibilities of the office in a prompt, efficient, nondiscriminatory, fair, and profes- sional manner. A judicial employee should never influence or attempt to influence the assignment of cases, or perform any discretionary or ministerial function of the court in

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Chapter 11 • Prosecutors, Grand Juries, and Defense Attorneys 343

a manner that improperly favors any litigant or attorney, nor should a judicial employee imply that he or she is in a position to do so.

D. A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. This proscription does not extend to public statements made in the course of official duties or to the explanation of court procedures. A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.

E. A judicial employee should not engage in nepotism prohibited by law.

Note: See also 5 U.S.C. § 3110 (employment of relatives); 28 U.S.C. § 458 (employment of judges’ relatives).

F. Conflicts of Interest.

(1) A judicial employee should avoid conflicts of interest in the performance of offi- cial duties. A conflict of interest arises when a judicial employee knows that he or she (or the spouse, minor child residing in the judicial employee’s household, or other close relative of the judicial employee) might be so personally or financially affected by a matter that a reasonable person with knowledge of the relevant facts would question the judicial employee’s ability properly to perform official duties in an impartial manner. . . .

CANON 4: IN ENGAGING IN OUTSIDE ACTIVITIES, A JUDICIAL EMPLOYEE SHOULD AVOID THE RISK OF CONFLICT WITH OFFICIAL DUTIES, SHOULD AVOID THE APPEARANCE OF IMPROPRIETY, AND SHOULD COMPLY WITH DISCLOSURE REQUIREMENTS

A. Outside Activities. A judicial employee’s activities outside of official duties should not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or office the judicial employee serves. Subject to the foregoing standards and the other provisions of this code, a judicial employee may engage in such activities as civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, and recreational activities, and may speak, write, lecture, and teach. If such outside activities concern the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and the other provisions of this code. . . .

CANON 5: A JUDICIAL EMPLOYEE SHOULD REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A. Partisan Political Activity. A judicial employee should refrain from partisan political activity; should not act as a leader or hold any office in a partisan political organization; should not make speeches for or publicly endorse or oppose a partisan political organi- zation or candidate; should not solicit funds for or contribute to a partisan political organization, candidate, or event; should not become a candidate for partisan political office; and should not otherwise actively engage in partisan political activities.

B. Nonpartisan Political Activity. A member of a judge’s personal staff, clerk of court, chief probation officer, chief pretrial services officer, circuit executive, and district court

Figure 11.2 continued

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344 Part 4 • The Beginnings of Formal Proceedings

face, the Supreme Court has been somewhat critical of judicial review of prosecutorial decisions. In Wayte v. United States (470 U.S. 598 [1985]), the Court gave this reason for avoiding judicial oversight: “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make” (p. 606).

In general, if the prosecutor’s decision not to press charges stems from legitimate factors, such as lack of evidence or case backlog, then the decision should be honored. The prosecutor’s decision should be honored even if he or she agrees to dismiss criminal charges if the defendant agrees not to file a civil suit.

Restrictions on Bringing Charges

This section turns to situations in which charges are filed but for inappropriate reasons. In other words, whereas the previous sections considered situations in which the pros- ecutor fails to bring charges, this section considers situations in which the prosecutor cannot bring charges.

There are two primary reasons a prosecutor cannot bring charges against an accused individual: (1) if the prosecution is unfair and selective (i.e., targets a certain individual unfairly) and (2) if the prosecution is pursued for vindictive reasons. The following subsections focus in detail on these situations.

Before going ahead, it is important to point out that prosecutors may occasionally bring charges, say, for vindictive reasons. Assuming such conduct comes to the attention of someone in a higher position of authority, the prosecuting decision will essentially be overruled. That is, the charges against the accused will be dropped, or in the event that the person is charged and convicted, his or her conviction will be overturned. However, if a prosecutor brings charges for inappropriate reasons and this decision goes uncontested, then the charges will most likely stand.

UNFAIR AND SELECTIVE PROSECUTION If the prosecutor’s decision to press charges is discriminatory in nature, the Fourteenth Amendment’s equal protection clause can be violated. For example, in Yick Wo v. Hopkins (118 U.S. 356 [1886]), the Supreme Court stated:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. (pp. 373–374)

executive should refrain from nonpartisan political activity such as campaigning for or publicly endorsing or opposing a nonpartisan political candidate; soliciting funds for or contributing to a nonpartisan political candidate or event; and becoming a candidate for nonpartisan political office. Other judicial employees may engage in nonpartisan political activity only if such activity does not tend to reflect adversely on the dignity or impartiality of the court or office and does not interfere with the proper performance of official duties. A judicial employee may not engage in such activity while on duty or in the judicial employee’s workplace and may not utilize any federal resources in connec- tion with any such activity.

Note: See also 18 U.S.C. chapter 29 (elections and political activities).

Source: From Code of Conduct for Judicial Employees. Available Online: http://www.uscourts.gov/

RulesAndPolicies/CodesOfConduct.aspx (accessed February 16, 2011).

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Oyler v. Boles (368 U.S. 448 [1968])

Simply put, if an individual is targeted for prosecution merely because he or she falls into a certain group (e.g., a minority group), then his or her constitutional rights will be violated. This is known as selective prosecution.

Since Yick Wo, the Court has become more specific as to what constitutes selective prosecution. In Oyler v. Boles (368 U.S. 448 [1968]), the Court held that prosecution becomes selective and in violation of the equal protection clause only when it is inten- tional and is intended to target “a certain class of cases . . . or specific persons.” In that case, the defendant presented evidence that he was the only individual of six sentenced under a particular statute. The Court held that this was not discriminatory because the defendant was unable to demonstrate intent by the prosecutor or provide evidence that he fit the group targeted for prosecution. In fact, the Court noted:

The conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. (p. 456)

DECISION-MAKING EXERCISE 11.2

The Decision Not to Charge

Following are the facts reported by the U.S. District Court for the District of Columbia in NAACP v. Levi, discussed previously on Page xx:

On May 31, 1971, Carnell Russ, a 24-year-old black, while operating his motor vehicle on an Arkansas highway, was arrested for an alleged speeding violation by Jerry Mac Green, a white state trooper. Russ was accompanied by his wife, their minor children, and an adult cousin. The trooper directed him to the county court- house. Russ complied and upon …