Over at Crimlaw, Virginia prosecutor Ken Lammers writes about the state’s law allowing private prosecutions. It’s a fascinating concept, and Ken goes into a bit of detail, but it comes down to this:
So, basically, if doubly approved by the judge and the public prosecutor, the hired gun prosecutor can take part in the case as long as he is under the control of the Commonwealth Attorney and has no civil case conflict. In particular, I think the civil case conflict rule is important, although it doesn’t entirely eliminate the private prosecutor’s monetary inducement to seek a conviction. After all, the party paying for the private prosecutor is paying him to be biased. However, the opinions seem to say that this was okay in Jolly Olde England, so it’s okay in Virginia until the General Assembly says it ain’t.
With those restrictions, it sounds to me as if this isn’t really about private prosecution anymore. If the Commonwealth Attorney has control over who the prosecutor is and retains control over the case, then it’s not so much a private prosecution as a privately-funded prosecution.
So, for example, if the Commonwealth Attorney’s office decides not to pursue a charge because they believe it is unfounded — no crime was committed, or the suspect isn’t really the doer — then they can prevent a private prosecutor from entering into the fray.
On the other hand, even if the Commonwealth Attorney believes the charge has a basis in reality, the office might decide to plea it down, dismiss it, or never file charges at all because they have a limited budget for prosecutions, which they prefer to use for more serious or more winnable cases. If the victim is upset about that, the Commonwealth Attorney could tell the victim that if he’ll spring for the lawyer’s fees, they’ll let him bring in an outside lawyer to pursue the case. I’m sure they could even recommend former prosecutors who they would approve for the job, which would serve the dual purpose of ensuring competent prosecution and enriching friends.
Taken to the logical extremes, a Commonwealth Attorney’s office that is truly interested in making the most efficient use of the budget for public prosecutions could end up working a lot like the Public Defender’s office: Let the wealthy victims hire their own lawyers because they can afford it, while the Commonwealth Attorney’s office does all the prosecutions for the poor victims who would otherwise be unable to seek justice.
Although I’m not sure that would be, um, politically feasible…
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