N.C. House To Consider Letting Private Lawyers Run Criminal Cases

[shanek]

http://www.wral.com/news/2009775/detail.html

A robbery victim believes the local district attorney has botched the prosecution of his attacker. Instead of giving up, he pays a high-powered lawyer to seek justice.

That's the idea behind a bill that would allow private attorneys to prosecute felony offenses in North Carolina independently, without the supervision of a local district attorney's office.

Not sure how I feel about this. I fully agree with the idea that the victim should have the same rights as the defendant, including the right to direct the prosecution. After all, the defendant gets an attorney who has to do whatever he says (within the bounds of the law, natch). Why shouldn't the victim?

On the other hand, the article raises a good point:

It also could create an environment where revenge or emotion, rather than the interest of justice, dictates whether a suspect should be charged, according to a representative for the state's DAs.

"Allowing them to go seek private prosecution until they are satisfied is kind of an open-ended thing," said Peg Dorer, director of the North Carolina Conference of District Attorneys. "It's not a workable option in our criminal justice system."

Okay, so double jeopardy would mean that you couldn't keep going after the guy once he's acquitted, but what's to stop them from continually harassing the defendand dismissal after dismissal after dismissal?

I think it might be better if prosecutors were treated more like defense attorneys— directly answerable to the victim, and the victim gets the right to direct the prosecution.

What do you guys think?

[Tmy]

If we let the victim call all the shots we'll choke the courts with all these cases cause someone has a chip on their shoulder. Do you want every case to go to trial?? Plus some victims do not want the state to go forward. For example domestic violence cases.

I think most systems now have victim witness advocates, and DA offices often take in the wishes of the victims. There are victims who will never feel that enough has been done. If they want to og afterthe criminal then they always have civil court. Go nuts.

[headscratcher4]

As I see it, there is an element that those who can afford it would pay for -- and likely get -- better justice than those who can't. While this may be acceptable and understandable in a civil situation, in criminal everyone before the law should be equal or at least have equal opportunities. I am not sure how I feel about this, but it seems problematic and should give some pause -- for instance what about malicious prosecution?

[hgc]

I'm the furthest thing from Libertarian, but this has merits -- with proper oversight.

If there is an adequate system in place where a private attorney is acting as representative of the state in the prosecution, allowing for all the procedures that balance the defendent's rights agains the power of the state to fine and incarcerate (rules of evidence and that sort of thing), it might work.

On the other hand, I think that the limited resources of prosecutors works to our ultimate advantage, since that forces them to practice discretion and prioritize appropriately in pursuit of their prey.

Something to ponder.

[arcticpenguin]

This sounds like a Bad Idea. A public prosecutor should not be out to convict at all costs, he is supposed to work for justice. That's why there are laws mandating that the prosecution turn over evidence to the defense, etc.

If the prosecutor is working for a profit motive, it creates a conflict of interest for her/him.

While the victim have suffered, that is not what a criminal trial is about. It is about whether the defendant is the one who caused that suffering.

As it is, the victim can bring in the high-powered lawyers to recover damages in a civil suit, a la O.J. Simpson, after the criminal trial.

[toddjh]

Originally posted by shanek
Not sure how I feel about this. I fully agree with the idea that the victim should have the same rights as the defendant, including the right to direct the prosecution. After all, the defendant gets an attorney who has to do whatever he says (within the bounds of the law, natch). Why shouldn't the victim?

Because a criminal case is about serving the interests of society as a whole, not one individual. What it boils down to is giving control over the case to a person who can't help but have very strong personal feelings affecting his or her judgement. The victim's view of justice is more likely to toe the line of revenge, which is not what the criminal justice system is meant to be about. If the victim wants personal restitution, that's what the civil courts are for.

Jeremy

[shanek]

Originally posted by Tmy
If we let the victim call all the shots we'll choke the courts with all these cases cause someone has a chip on their shoulder. Do you want every case to go to trial??

No, but surely the decision on whether or not a case has merits belongs to the judge, right?

Plus some victims do not want the state to go forward. For example domestic violence cases.

I understand it can be hard for such victims to come forward, but it seems to me to be a greater injustice for the government to assume that there is a crime when no one actually complains. Social Services is an excellent example of the evils that can happen once you get that mentality.

I think most systems now have victim witness advocates, and DA offices often take in the wishes of the victims.

The problem is, that's not codified anywhere. It's also repugnant to me that the defendant gets representation but the alleged victim doesn't. They should both have the right to representation.

There are victims who will never feel that enough has been done.

Well, there are prosecutors who often feel that not enough has been done in a particular case, but are prevented from going forward by a judge or the concept of double jeopardy.

If they want to og afterthe criminal then they always have civil court. Go nuts.

But all they can do there is get money. And if the criminal is poor, too bad.

[shanek]

Originally posted by toddjh
Because a criminal case is about serving the interests of society as a whole, not one individual. What it boils down to is giving control over the case to a person who can't help but have very strong personal feelings affecting his or her judgement. The victim's view of justice is more likely to toe the line of revenge, which is not what the criminal justice system is meant to be about. If the victim wants personal restitution, that's what the civil courts are for.

I understand and agree, but it also seems to me as though the victim should have some course of action whenever a prosecutor has botched a case or (for reasons others have mentioned above) just flat out refuses to do anything.

[Plutarck]

Originally posted by shanek


I understand and agree, but it also seems to me as though the victim should have some course of action whenever a prosecutor has botched a case or (for reasons others have mentioned above) just flat out refuses to do anything.

I agree, but I don't think it wise to have any form of criminal recourse - civil, yes (under certain circumstances).

The key, I think, is that the function of the criminal justice system should have only the least relation to the victim themself, except to protect them from further harm. Rather, the criminal justice system is for the protection of society as a whole - that is, other people - first and foremost, and thus the victim should not have much say in the matter at all.

But for the redress of grievances, that is where the civil justice system comes in, for it is almost entirely suited for just this purpose - to seek to be "made whole", and/or to punish (in some circumstances) one who has wronged you.

As to having some recourse to bad prosecutors, I think that best handled within the system itself, as-in the right to a legal hearing to petition for the removal of a prosecutor, or to require a legal, or at least a public, ruling of whether or not a prosecutor's actions where reasonable.

Beyond that, I can simply envision no way to properly deal with malicious and excessive actions, and especially no way to avoid violation of the absolutely crucial double jeopardy rule.

The legal system is dangerous enough as it is to freedom and openness to abuse - to add yet another party who are well understood to be almost never objective and often rather irrational, or at least especially harsh (as would be expected), could only make things even worse.

In short, it jeopardizes loosing the whole goodness of having criminal cases judged by what are at least hoped to be objective, impartial, and largely uninvolved parties - the rule of law itself, really.

[shuize]

Tmy's point above is a good one. Without even addressing the issue of what the proper relationship between prosecutor and victim should be, this is not a good idea in practice.

Although jurisdictions vary, on average only around 10% of criminal cases go to trial in the United States. The vast majority are negotiated pleas. (In fact, many prosecutors will purposely "over-charge" as leverage to force negotiated pleas) Good prosecutors certainly take the victims' wishes into consideration. But in our current system there is no way that every case in which the victim is demanding 100% satisfaction could go to trial. Even doubling the figure above to 20% would cripple the courts.

[shanek]

Originally posted by shuize
Tmy's point above is a good one. Without even addressing the issue of what the proper relationship between prosecutor and victim should be, this is not a good idea in practice.

Although jurisdictions vary, on average only around 10% of criminal cases go to trial in the United States. The vast majority are negotiated pleas. (In fact, many prosecutors will purposely "over-charge" as leverage to force negotiated pleas) Good prosecutors certainly take the victims' wishes into consideration. But in our current system there is no way that every case in which the victim is demanding 100% satisfaction could go to trial. Even doubling the figure above to 20% would cripple the courts.

What if you got rid of all of the stupid victimless "crimes" which shouldn't even be on the books in the first place? That should certainly open things up.

(Still on the fence on this issue, by the way.)

[Plutarck]

Originally posted by shanek


What if you got rid of all of the stupid victimless "crimes" which shouldn't even be on the books in the first place? That should certainly open things up.

(Still on the fence on this issue, by the way.)

Putting all my thoughts on the issue together in a simple nutshell:

I think private criminal cases, like even greater levels of wealth redistribution than we have now, could in theory improve both society as a whole and the vast majority of indidividuals without posing a great deal of strain on anyone; the problem is when that theory gets translated into policy and enforced by the government, and is within the power of the government to toy with it as they please.

While in theory it could possibly be desirable, it is simply too fragile - the government would end up f*cking it up in no time flat, and we'd be worse off than if we had never done it. It seems to me to be outright just "too dangerous" for any good that can be brought about, as the same problems can be addressed in other safer, minor ways.

[shanek]

Originally posted by Plutarck


Putting all my thoughts on the issue together in a simple nutshell:

I think private criminal cases, like even greater levels of wealth redistribution than we have now, could in theory improve both society as a whole and the vast majority of indidividuals without posing a great deal of strain on anyone; the problem is when that theory gets translated into policy and enforced by the government, and is within the power of the government to toy with it as they please.

While in theory it could possibly be desirable, it is simply too fragile - the government would end up f*cking it up in no time flat, and we'd be worse off than if we had never done it. It seems to me to be outright just "too dangerous" for any good that can be brought about, as the same problems can be addressed in other safer, minor ways.

Good points as usual, Plutarck.

So, what are these "other safer, minor ways"?