15 October 2015

When Can the Attorney General Prosecute?

Prosecutor:  "No, Mrs. Smith, we will not be prosecuting your dead uncle because he promised he would leave you the house in his will and he didn't."

Mrs. Smith:  "But you could prosecute Bobby-Jean. She's the one who's got his estate."

Prosecutor:  "She didn't do any crime. You need to talk to a private attorney about this."

Mrs. Smith:  "I ain't got the money to do that. You better prosecute or I'll go over your head to the Attorney General!"

I would wager that every person who works in a Virginia Commonwealth Attorneys office has heard this threat at least five or six times. The thing is, the Attorney General mainly handles appeals. He has very limited prosecutorial abilities in a circuit court. I don't answer to him; I answer to that guy at the other end of the hall from my office. And the reason I'm dealing with Mrs. Smith is that the guy at the end of the hall grew up around here and knows she's coocoo for coco puffs. He's talked to her 26 times already about this and is hoping that my reasoning might break through the maginot line of Mrs. Smith's mind where his has not.

Anyway, the one good thing the conversation has done is to spark my interest in what exactly the Attorney General's criminal prosecution jurisdiction is. So, I sat down and tried to figure it out. There's always the possibility that I missed some section hidden in the UCC somewhere, but I think this covers the vast majority of prosecutorial powers which can be exercised by the Attorney General.

Boundaries of the Attorney General's Prosecutorial Powers in Circuit Court Criminal Trials (mainly found in Virginia Code section 2.2-511):

1) Apparently none if asked by the Governor to handle a particular case.

2) Without a request from the governor and without permission of the local prosecutor:

(a) Violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.),
(b) Violation of laws relating to elections and the electoral process as provided in § 24.2-104,
(c) Violation of laws relating to motor vehicles and their operation,
(d) The handling of funds by a state bureau, institution, commission or department,
(e) The theft of state property,
(f) Violation of the criminal laws involving child pornography and sexually explicit visual material involving children,
(g) Unauthorized practice of law,
(h) Violations of § 3.2-4212 [cigarette taxing provisions] or 58.1-1008.2 [false report by tobacco company].
(i) Per 18.2-43, assist in all endeavors and prosecutions against those participating in a lynching.
(j) Per 18.2-498.5, violations of the Virginia Governmental Frauds Act.
(k) Per 19.2-9, may appear with the Commonwealth Attorney when a criminal case is removed to federal court.

3) With the permission of the local prosecutor:

(a) Violations of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.),
(b) Violations of the Air Pollution Control Law (§ 10.1-1300 et seq.),
(c) Violations of the Virginia Waste Management Act (§ 10.1-1400 et seq.),
(d) Violations of the State Water Control Law (§ 62.1-44.2 et seq.),
(e) Violations of Chapters 2 [Principals and Accessories] (§ 18.2-18 et seq.), 3 [Incohoate Offenses] (§ 18.2-22 et seq.), and 10 [Crimes Against the Administration of Justice, i.e. Obstruction] (§ 18.2-434 et seq.) of Title 18.2, if such crimes relate to violations of law listed in (b), (c), and (d) supra,
(f) Criminal violations by Medicaid providers or their employees in the course of doing business, or violations of Chapter 13 [Racketeering] (§ 18.2-512 et seq.) of Title 18.2, in which cases the Attorney General may leave the prosecution to the local attorney for the Commonwealth, or he may institute proceedings by information, presentment or indictment, as appropriate, and conduct the same,
(g) Violations of Article 9 [Money Laundering] (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2,
(h) Assisting in the prosecution of violations of §§ 18.2-186.3 [Identity Theft] and 18.2-186.4, [Publishing Another's Information to Harass],
(i) Assisting in the prosecution of violations of § 18.2-46.2 [Criminal Street Gang Participation], 18.2-46.3 [Criminal Street Gang Recruitment], or 18.2-46.5 [Committing Terrorist Act] when such violations are committed on the grounds of a state correctional facility, and
(j) Assisting in the prosecution of violations of Article 10 [Cigarette Sales Laws] (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2.

4) Multi-jurisdictional Grand Jury – Per 19.2-215.10, if requested by applicants or special counsel, may participate as special counsel to the grand jury and in any prosecution arising from the grand jury.

5) I would posit that if the Attorney General wanted to donate the time of an attorney in a case wherein there is no statutory authorization then the assistant attorney general can work as a private prosecutor. I have no statutory or case law to support this, but there is a solid argument in favor of this position. Article V section 15 of the Virginia Constitution creates the Attorney General and states "He shall perform such duties . . . as may be prescribed by law."  It does not state that he shall perform his duties as prescribed by statute or by the General Assembly; it says "law." Virginia recognizes common law and the common law has long allowed private prosecutors with the acquiescence of the local government prosecutor.  It would just have to be done according to the rules for private prosecutors.


Piedmont said...

Okay, three thoughts:
1) I hope your boss had fun telling the lady that he doesn't report to the AG, either.
2) Is the request by the Governor, alone, enough to allow the AG to institute any kind of prosecution, or is it just one of several necessary conditions?
3) The AG has authority to institute and conduct the enumerated types of prosecutions, but it's certainly not exclusive. What happens if both the CA and the AG want to prosecute? Normally, I'm sure each group would be all in favor of offloading some work, but maybe the Lieutenant Governor's godson's girlfriend picked up a UPA, and the CA suspects the AG will try to let her off. Can the AG step into and take over the CA's case?

Ken Lammers said...

1) The really hard core ones never believe us. I have this picture in my head of some poor yutz in the Attorney General's office being given the duty of answering the daily calls from the true whackos about refusals to prosecute that case from 1972 when Uncle Bob's friend from Nova Scotia wrote a check for $12.52 and it bounced. They probably get threatened with a call to the governor when they try to explain they can't do anything.

2) The exact language in the statute is "Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving . . ." It seems pretty clear that if specifically requested by the governor the Attorney General could prosecute any case.

3) Look for a blog post about this soon.