Self-Defense in Criminal Cases

Self-defense in criminal cases.

One of the frustrations faced by many businesses is that after the perpetrators of crimes have been identified, the District Attorney's office will not pursue the case. One option is for victims to sue the DA in an attempt to compel him to prosecute, but this would be costly and proving dereliction of duty would be difficult. The DA is effectively immune. Other options are more promising. The law should encourage (and prosecutors' offices should welcome) private preparation of criminal cases. Prosecutors' budgets simply do not allow vigorous prosecution of all the available criminal cases. Logic and evidence show that in private law, plaintiffs win about 50 percent of the cases that are tried. This is because the parties are more likely to settle lopsided cases out of court. Public prosecutors, by contrast, win far more than 50 percent of their trial cases because they have budget constraints and so elect whenever possible to go to court with only the cases they are likely to win. Victims should be allowed to hire private attorneys and other professionals to prepare cases against the accused and thereby extend public prosecutors' resources. The attorneys can be retained pro bono (for the good) or for compensation. This is already done in some white collar cases where financial complexities exceed the prosecutors' expertise, such as complicated embezzlement cases, some oil and gas swindles and cases involving the misapplication of construction trust funds.

At present, many cases are never prosecuted for one reason or another. For example, in about 40 percent of federal embezzlement and fraud cases, charges are dropped because of insufficient evidence to convict, given the resources at hand.85 In some instances prosecutors "deputize" attorneys to try cases, too. Many private attorneys have criminal experience as former prosecutors or public defenders. A logical extension of private preparation for trial is the complete privatization of the prosecutor's job by contracting out. Private attorneys, of course, are often appointed on a pro bono basis for criminal defense. Private attorneys could be deputized for a single trial or for ongoing prosecutor's work, either pro bono or under contract.

The same remedies are available to finance criminal prosecution as civil litigation. Commercial insurance policies could be expanded or created for this market. Associations and community groups could cover these costs for members and subscribers.

In Gideon v. Wainwright (1963), the United States Supreme Court held that because the assistance of counsel in a criminal case is a fundamental necessity, the Constitution requires appointment of attorneys to represent "any person haled into court, who is too poor to hire a lawyer."

Today, the promise of Gideon is threatened -- in virtually every jurisdiction -- by severe budget cuts resulting in understaffed defense offices and excessive caseloads. Meanwhile, prosecutors' budgets keep escalating and law-makers keep inventing more draconian statutes. Adequate funding for indigent defense is a priority concern for NACDL, as reflected in the tireless efforts of our Indigent Defense Committee and our own full-time staff Indigent Defense Coordinator. Indigent defense is also a central concern of our Legislative Committee and our Amicus Committee. The Association's most recent addition, a full-time Death Penalty Resource Counsel, commits NACDL to leading a redoubled campaign opposing executions and needless and barbaric taking of human lives.

The NACDL Prosecutorial Misconduct Committee is co-chaired by Hugo Rodriguez of Miami, Florida, Marvin Miller of Alexandria, Virginia, and Robert Hooker of Tucson, Arizona. The Committee serves to assist our communities and the legal system by shedding light on misconduct and abuse on the part of authorities. The American people have an abiding faith in the fairness of our nation's criminal justice system. Exposure of prosecutorial abuse helps to cleanse the system, impart balance and restore fundamental fairness for citizens accused of crime. Eternal vigilance is the price of liberty. We seek your assistance in helping us ensure justice and due process for those accused of crime by promoting the proper and fair administration of criminal justice. If you were involved in or have knowledge of a documented case of law enforcement or prosecutorial abuse, share it with us by sending us the court decision, appellate decision, or other documentation. We will share verifiable cases with others so that these are no longer hidden from the public but brought out into the light of day and exposed.

The Problem: Personalization of Prosecution Invites Excess: Once the phrase "prosecutorial discretion" conjured up an image of sober, reflective and mature exercise of well-informed judgment, usually characterized by a certain concern for public confidence in the system. Now the phrase has increasingly become synonymous with the arbitrary targeting of subjects based on criteria ranging from political hardball, to prosecutorial ambition, to the allure of urgent newspaper headlines and television promos ("News at 11") that, like magic pixie dust, can grace a faceless civil servant with instant celebrity status. To be sure, most prosecutors we encounter work long hours with little glory trying to bring about a just result. The problem is at the margins -- but the margins are growing. Increasingly, the high public profile of a target or the attention-grabbing nature of the alleged wrongdoing may have more to do with a matter's "prosecutorial merit" than the strength of the evidence or the seriousness of the crime. It is axiomatic by now that whenever prosecutorial effort becomes more focused on "getting" a particular person than pursuing a particular, identifiable allegation, as is increasingly the case, it alters the very architecture and mission of the prosecutor's office. The personalization of prosecution -- "let's get this guy" -- invites excess. The problem has become endemic, and the solution will need to go beyond ad hoc displays of judicial exasperation and oversight. It requires careful, synoptic analysis of the extent and nature of prosecutorial excess, especially in connection with the prosecution of relatively minor white-collar allegations covered by sweeping and overlapping civil or administrative remedial schemes. A congressional solution is necessary to truly curb the over-breadth of discretion and power given to individual lawyers who happen to hold the job of counsel for the government. Until then, however, we believe that it is the job of a conscientious judiciary, at the aggressive