23 November 2015

Prosecutorial Primacy:
AG or Commonwealth Attorney?

Piedmont asked an interesting question in a comment on the prosecutorial powers of the Attorney General post:
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? Can the AG step into and take over the CA's case?
The problem here begins in the Virginia constitution. A Commonwealth Attorney is a "constitutional officer" created under the local government portion of the constitution. Art. VII sec. 4. As such, the office does not fall under any branch of the government in Richmond. However, the only constitutional instruction for the office is that
"The duties and compensation of such officers shall be prescribed by general law or special act." Id.
The Attorney General, while an independent elected office, is clearly a part of the executive branch of the Richmond government created in Article V sec. 15. And yet again, the constitutional instruction as to his function is rudimentary:
"He shall perform such duties and receive such compensation as may be prescribed by law."
The language is effectively identical and therefore not very helpful to our analysis. So next we turn to the statutes.

The last post about the Attorney General examined the statute which outlines the statutory powers granted to and limitations within which the Attorney General must operate

The parameters within which the Commonwealth attorney operates are generally laid out in Va. Code Sec. 15.2-1627 - most specifically in subsection (B):
B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.
So, the CWA has power over all charges starting at class 3 misdemeanors (maximum punishment $500). The AG has four basic functions it can do (1) assist the CWA without the CWA's permission [lynching crimes], (2) assist the CWA with permission [ID theft, street gang activity in prison, & cigarette sales laws], (3) prosecute with the CWA's permission, and (4) prosecute without the CWA's permission [see prior post for 3 & 4]. It's this last power which is interesting. There does not appear to be a primary prosecutor in those cases which the AG can pursue without a CWA's approval. Thus, there appears to be concurrent jurisdiction which would mean a race to conviction (assuming the CWA and AG are at odds) with the first to convict having the primacy of place because of double jeopardy protections in both the Virginia and US constitutions.

However, I think that the concurrent jurisdiction problem is solved by who controls the grand jury. While a grand jury is regularly impaneled by the local judge, only the CWA, after receiving information from law enforcement "may in such case issue or cause to be issued a summons for any witnesses he may deem material to give evidence before the court or grand jury." Va Code 19.2-201. As well, the only legal agency which can request a special grand jury is the CWA, Va Code 19.2-206, and the only legal agency granted authority to assist the special grand jury is the CWA. Va Code 19.2- 210. Finally, while the AG must approve applications for multi-jurisdictional grand juries, Va Code 19.2-215.2, two or more CWA's must apply for a multi-jurisdictional grand jury to the Virginia Supreme Court. Va Code 19.2-215.3. In order to participate in the multi-jurisdictional grand jury (and subsequent prosecutions) the AG must be invited in by the applying CWA's. Va Code 19.2-215.10. Since "no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction or unless such person, by writing signed by such person before the court having jurisdiction to try such felony or before the judge of such court shall have waived such indictment or presentment" the grand jury is a choke point which the Attorney General cannot get past without a defendant agreeing to waive it.  Va Code 19.2-217

So, the answer is, because of the AG's lack of access to the grand jury, the CWA has primacy in almost all prosecutions. The only time an AG could prosecute something without the CWA approving at some point would be (1) if the AG had the power to prosecute without the CWA's approval, and (2) the AG and the defendant agreed to go forward on an information rather than the defendant standing on his statutory right to a finding by a grand jury. That seems an unlikely scenario, but it is legally possible.

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