Prosecuting attorney

“ If he err by discharging the prisoner, he knows that it may let a guilty man go free, untried. If he err by committing him for trial, he knows that, if innocent, the jury are quite sure to acquit him. He acts also in public. The whole community knows or may know the proofs before him, and will hold him to account accordingly. On the other hand, in the grand jury room all is secret. The prosecuting attorney, if admitted, does not remain while the jurors are deliberating over their decision. No one outside knows who may vote for and who against the return of an indictment. ”

“ In criminal cases these experts affect the side of the prosecution. Is a conviction secured? It is the result of his skill, while in case of an acquittal, he protests that justice has been cheated, and the prosecuting attorney never fails to indorse this view. He dearly loves a forgery case. If retained by the prosecutor, that official will protect the expert, and have witnesses to corroborate his opinion; while, should the defence secure his services, the expert’s opinion will be corroborated by the defendant 190himself. ”

“ It is true that it is generally said that a deputy prosecuting attorney, legally appointed, is generally clothed with all the powers and privileges of the prosecuting attorney, but he must file the information in the name of the prosecnting attorney. ”

“ They can punish him summarily for contempt if he refuses to answer their questions or if he disobeys any of their orders. [5] They can exclude any person they wish from the examination, including the witness' counsel. [6] After the questioning the Marshal or his deputy can arrest the witness if he believes that there is evidence sufficient to charge him with arson or a similar crime. [7] Any statements taken from the suspect during these secret sessions must be turned over to the Prosecuting Attorney for use in any subsequent prosecution. ”

“ The session of October 11th was ended, and Gilles led back to prison.
On Wednesday the judges met, not in the great audience chamber, but in the hall below, aula bassa. It was, and is, the custom in the prosecution of criminal cases to have the investigation of the witnesses before either the court or some high officer of justice prior to the public or official trial. In this investigation the procedure corresponds in some degree to that of our grand jury, or more properly before the prosecuting attorney as well as the presiding judge. ”

“ The organization and functions of the American grand jury are similar, except that here we have prosecuting attorneys to procure the presence of the necessary witnesses and direct the course of their examination. In the Federal courts almost all criminal accusations, great or small, are, and by the fifth amendment to the Constitution of the United States all charges of infamous crimes must be, prosecuted by presentment or indictment. In most of the States the intervention of a grand jury is requisite only in case of serious offenses ”

“ The statute specifically charges the prosecuting attorneys with the duty of bringing actions to recover the penalties. It is averred in the bill, and admitted by the demurrer, that they threatened and were about to commence proceedings for that purpose. The unconstitutionality of the act is averred, and relief is sought against its enforcement. ”

“ Considering therefore, how easily frivolous and unjust Prosecutions are set on foot, and Evidences fit for any Turn may be procur'd, nothing can be a greater Security than this noble Law ; for after all the Arts and Management betwixt a bad Governor, Judge, and Attorney-General, to carry on an illegal Prosecution, the whole Contrivance is at last spoiled by the Impossibility of Packing a Jury for the Purpose. ”

“ If, indeed, a case should occur where an attorney has been guilty of some professional misconduct for which the court, by its summary jurisdiction, might compel him to do justice, and at the same time has been guilty of something indictable in itself, but not arising out of the cause, the court will not inquire into that with a view of striking him off the roll, but would leave the party aggrieved to his remedy by a criminal prosecution. ”

“ Similarly he may have offered to plead to a lower degree of the same offence and his offer may have been refused, yet the matter is confidential and the case has to be tried by the district attorney as though he had no knowledge of the defendant's guilt. So the jury retire and frequently end their deliberations by acquitting the defendant, who leaves the court-room triumphantly to the great chagrin of the prosecutor. The jury, on the other hand, are filled with complacent satisfaction at having restored to liberty a man unjustly accused of crime. ”

“ Whether the question of probable cause for the prosecution, as affecting the question of costs, should be tried and determined by the court or the jury, and with or after the main question of the guilt of the defendant, is matter of convenient practice, not of constitutional right. A prosecution for libel, at least, can hardly be tried without exhibiting to the court and jury the motives and grounds of action of the prosecuting witness. ”

“ Obvious misconduct of an attorney is more likely to injure the people than the accused. It could hardly have any other influence on the verdict of a jury. If no crimes are to be punished in which there is energetic prosecution, which may occasionally involve expressions which the law discountenances, we may about as well shut up our criminal courts. Almost any attorney may be baited into making uncourteous remarks. Happily the Supreme Court has recently decided that no matter what the District Attorney does, a felon duly convicted upon sufficient evidence shall not thereby be turned loose. ”

“ At the present time the official prosecutor himself is the only person to whom one charged with a criminal offence can turn with any hope of relief from his own lawyer, and if the number of cases were known where the prosecutor has befriended the prosecuted the eyes of jurors and of the public would be opened to the real spirit which animates a fair-minded district attorney. ”

“ No trial of any person is contemplated by the act for any past offence. Nor is any party supposed to be charged with any offence in the only proceeding which the law provides.
A person proposing to appear in the court as an attorney is asked to take a certain oath. There is no charge made against him that he has been guilty of any of the crimes mentioned in that oath. There is no prosecution. ”

“ Surely the tremendous power of inflicting such a punishment should never be permitted to be exercised unless absolutely necessary to protect the court and the public from one shown by the clearest legal proof to be unfit to be a member of an honorable profession. To disbar an attorney for an indictable offence not connected with his professional conduct, before trial and conviction, is also to inflict an additional wrong upon him. It is to give the moral weight of the court's judgment against him upon the trial on an indictment for that offence. ”

“ Your pamphlet merely attacks the technical authority of one of the attorneys for the prosecution, incidentally abusing two judges. This is not the course of an innocent man. It is the course of a guilty man who desires to divert the attention of the tribunal of public opinion. The tradition is here fulfilled of the attorney’s instructions to the barrister acting for his guilty client, ‘No case; abuse the opposing counsel.’ I am compelled now to assume that you have no case, because all that your expensive pamphlet does is to abuse one of the counsel for the prosecution. ”

“ In order to constitute a fleeing from justice, it is not necessary that the course of justice should have been put in operation by the presentment of an indictment by a grand jury, or by the filing of an information by the attorney for the government, or by the making of a complaint before a magistrate. It is sufficient that there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been actually begun. ”

“ Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are entered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is empanelled for the trial of the case, except in cases where it is otherwise provided in some act of Congress. ”

“ Almost every panel has the opportunity to hear at least one "sucker" tell his story and to render a speedy verdict in his favor. It needs little explanation from a prosecutor to convince the twelve hard-working tradesmen before him that the defendants in this class of cases are the "real" criminals,—systematic enemies of society.
The great bulk of cases, that is to say, nearly seventy-five per cent, are disposed of by plea, by direction of the court, or "recommendation," that is to say, on the written application of the district attorney that the defendant's bail be discharged. ”

“ We find, in short, absolutely no support for the claim that the criminal charges were either brought or prosecuted in a particular fashion in order to influence defendants to dismiss their civil suit. The government had previously acquired, as the affidavit for the search warrant fully supports, very substantial evidence of monstrous criminal offenses which no responsible United States Attorney could refuse to prosecute. ”

“ Such offenders everywhere are competent witnesses if they see fit voluntarily to appear and testify; but the course of proceeding in the courts of many of the States is quite different from that just described, the rule being that the court will not advise the Attorney-General how he shall conduct a criminal prosecution. Consequently it is regarded as the province of the public prosecutor and not of the court to determine whether or not an accomplice, who is willing to criminate himself and his associates in guilt, shall be called and examined for the State. ”

“ A conscientious preparation means getting ready for any defence he may endeavor to put in. Just as the prudent general has an eye to every possible turn of the battle and has, if he can, re-enforcements on the march, so the prosecutor must be ready for anything, and readiest of all for the unexpected. He must not rest upon the belief that the other side will concede any fact, however clear it may seem. Some cases are lost simply because it never occurs to the district attorney that the accused will deny something which the State has twenty witnesses to prove. ”

“ It is because of this limitation upon the extent of judicial inquiry into such matters that a proceeding for purely professional misconduct against an attorney may be taken in any way which will sufficiently apprise him of the grounds upon which it is founded, and afford him an opportunity to be heard. It is not as thus limited a criminal proceeding in any proper sense, requiring full and formal allegations with the precision of an indictment. ”

“ The Attorney General shall take all appropriate steps to establish prosecution guidelines and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecutions of offenses having a nexus to the southern border. ”

“ Nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation. [770] Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives. ”

“ The certainty in England also that criminal prosecutions may in any case be subjected to the power of a public officer by the interposition of the Attorney-General or the Director of Public Prosecutions makes it more important to safeguard a defendant who may be arraigned for a political offense, and whose prosecution may be inspired by reasons of a partisan nature. The magistrates upon whom the task of conducting or superintending the examination would naturally fall are also largely both representative of class interests and unlearned in the law. ”

“ When the charge against the attorney is of misconduct in his office, and that involves, as it sometimes may, the commission of a public offence, for which he may be prosecuted criminally, the inquiry should proceed only so far as to determine the question of professional delinquency, and he should be left to the proper tribunals for the punishment of the crime committed. ”

“ To support an action for a malicious criminal prosecution the plaintiff must prove, in the first place, the face of prosecution, and that the defendant was himself the prosecutor, or that he instigated its commencement, and that it finally terminated in his acquittal. He must also prove that the charge preferred against him was unfounded, and that it was made without reasonable or probable cause, and that the defendant in making or instigating it was actuated by malice. ”

“ Is it not incongruous that that which 'the interest of justice' demanded in the criminal prosecution is beyond the power of a court in a civil suit against the same defendants on the same transactions? ”

“ If the accused has no lawyer, the court must appoint one for him. While a man so appointed must defend the case, the best lawyers are not secured in this way. There has been considerable demand for the creation of the office of public defender for accused persons. The State employs public prosecutors, and it is argued that it should be as much interested in proving a man’s innocence as in proving his guilt. ”