State Ex Rel. Hamstead v. Dostert

It mаkes no sense for West des are made. 17D-2A-5(a) (1983 Supp.),

Virginia Code § companies notify require insurance date of

the Commissioner of effective

cancellation or termination of old insur- policies corresponding without a re-

ance notify

quirement the Com- initi- date of

missioner of the effective

ation of new insurance policies. place To legislative of this hiatus in the burden

scheme on innocent motorists is both insen- unnecessary.

sitive and reasons, foregoing I must re-

For

spectfully dissent.

313 S.E.2d 409

STATE ex rel. Braun A. HAMSTEAD DOSTERT,

The Honorable Pierre E.

Judge of the Circuit Court of Jefferson Giardina,

County and Donald R. Sher County.

iff of Jefferson

No. 16121.

Supreme Appeals Court of Virginia.

Submitted Jan. 1984.

Decided Feb. 1984.

Opinion Concurring in Part and

Dissenting in Part March 1984. Hamstead, Atty.,

Braun A. Pros. Charles Town, for relator.

Pierre E. Dostert and Donald R. Giardi- na, pro se.

McGRAW, Justice: corpus proceeding, this habeas Hamstead, petitioner, Braun A. Prosecut- ing Attorney County, of Jefferson chal- lenges Judge authority Pierre E. Dostert, Judge Twenty-third Circuit Circuit, him sponte Judicial to order sua particular grand jury seek a indictment. petitioner prohibit Judge also seeks to interfering Dostert from further in the presentment of the case involved before grand jury. surrounding

The circumstances the un- derlying criminal action are described affidavit and exhibits submitted petitioner. Payne, Lois lived Yvonne mother, Payne, her Adora M. and her moth- sister, McClain, er’s in Jefferson Genevieve County. fifty years Lois old and had a was long history problems. of mental health argu- Genevieve was older and was also Adora, competency. in a state- able mental given police, ment the alterca- described 20, 1983, her August tion on between sister, daughter and her which resulted her sister’s death: my daughter

Mrs. were McClain Lois, my daughter, living room. go get wanted to to the store to some tried to cigarettes. Mrs. McClain then (Lois) keep lock the door to her tussling house. Both of them started got the floor. I and both of them fell to up by and she walked my sister the hand solely to be within considered the matter was con- to the bedroom. She back Judge Dostert’s at- laying on the bed bleed- his discretion and that scious. She was wiping jury proceedings I her head. She ing kept tempt influence go kept saying that she didn’t want by other defendants upon could be seized hospital. then went into con- She Judge replied jury tampering. Dostert Dr. and I called Williams. She vulsion by ordering petitioner appear before I ambulance. called told me call an him at 9:30 a.m. in his chambers her to the the ambulance and took appeared petitioner before When the hospital. chambers, reit- judge Dostert days Payne’s died a few later. Lois aunt petitioner The then erated his directive. hearing Sep- (1) of a on requested permit At the conclusion to reso- a continuance 21, 1983, Payne sent Lois was to tember presenting to prior lution of the issue Hospital psychologi- the State for Weston (2) testimony grand jury to the and to avoid At the cal examination and evaluation. being Judge contempt held in of Dostert’s hearing subsequent of a on No- conclusion request The for a continuance was order. Dostert, Judge upon vember based denied, the that judge and indicated the a assessment of the defen- psychological wanted, petitioner anything could he do trial, competency to stand found dant’s grand going because he was to instruct the although currently compe- not she was jury only to consider a murder indictment. trial, there tent to stand was substantial im- Judge proceeded qualify, Dostert to compe- likelihood that she would become grand general- panel, jury and instruct the six months. He then ordered tent within procedures on to ly their duties and the Hospital her to Weston State committed departure In an from followed. admitted period for to six months. not exceed practice, however, Judge fur- past Dostert January 17,1984, the On Jefferson Coun- jury grand ther the that it could instructed Jury ty set to convene and Grand was in homi- consider murder indictments begin January deliberations. On cases, any less- cide and could not consider petitioner Judge Dostert learned that the Judge in- er included offenses. Dostert grand to going jury was seek a indictment grand jury formed the that: manslaughter involuntary Payne for in the Virginia, crime the of homicide 14, 1984, Judge January Dostert case. On by person when a is killed committed prosecuting attorney, telephoned assistant being killing Gaidrich, indicating peti- human and the Melody that the another murder, not unjustified should seek a an not and it is not or tioner accidental involuntary manslaughter, indictment justified under circum- it is not petitioner The was in- Payne case. You to stances. consider the Judge of Dostert’s instructions formed homicide, mur- degrees degree first January his assistant on 1984. der, murder, voluntary degree second manslaugh- manslaughter, involuntary approximately January 9:15 a.m. on At one, determination, ter. sole wаs a Your 17, 1984, Judge telephoned pe- Dostert Second, being human killed? was titioner, present ordering him to a murder third, Or was it not accidental? present an indictment involun- officer, police in the I usually is case of manslaughter grand tary indictment to the desire, you you if will instruct further petitioner jury Payne in the case. The police person, kills a when a officer upon investigat- responded based become, question killing would was ing report officer’s the evidence unjustified? justified or It prior presented preliminary proceedings petit jury to the evidence in its weigh case, jury grand per- should be make entirety at a time and returning latter involuntary mitted consider degree, manslaughter determination petitioner indictment. The if Judge any, indicated has has not been Dostert homicide added).1 (Emphasis jail by Judge committed. was released from Dostert upon posting fifty dollars bond on grand jurors were then sent to their appear the condition that “he will petitioner again room. The moved for a required Circuit Court at all times as continuance, denied, again which was during said Court pendency of said Judge petitioner Dostert go ordered the matter.” grand Upon jury room. his arrival chambers, grand juror’s petition- grand jury potential er informed the I. problem, grand jurors and asked IX, Article 1 of the West Con- § determine desired request provides: stitution “The voters of each Judge continuance Dostert. After county shall elect a prosecuting ... attor- deliberating period time, for a ” ney IV, .... Article 8 of the West jury petitioner called the back into their provides: Constitution further chambers and him delivered a note to legislature “The prescribe, by ... shall Judge Dostert, transmit to requesting that general laws, office, powers, terms reporter the court read Dostert’s compensation duties and all offi- instructions again. to the once ” cers .... Pursuant to this constitutional Upon receiving grand this note from the mandate, legislature provided: our has jury, Judge Dostert entered an “Order in It duty prosecuting shall be the directing petitioner Mandamus” to attorney to attend to the criminal busi- why show cause he immediately should not county ness of the State in the in which presenting commence evidence to the he is qualified, elected and and when he grand jury. response, his written has information of the violation of any petitioner stated that the jury had penal law committed county, within such requested to present- hear formal he prosecute shall institute and all neces- ments, but desired to review the court’s sary proper proceedings against and petitioner instructions. The also reiterated offender.... request his Following for a continuance. (1976 Replace- West Code 7-4-1 § hearing cause, brief on the rule to show Vol.). added). (Emphasis ment Judge petitioner Dostert ordered the to be- duty In connection pros with this to gin presenting grand jury. cases to the ecute, recognized this Court in State ex rel. petitioner After respond failed to to Dostert, 743, Skinner v. order, W.Va. Judge Dostert him had commit- (1981), duty S.E.2d that: “The to ted to the County approxi- Jefferson Jail at prosecute qualified, however, is mately cell, that the p.m. jail 1:45 From his prosecuting attorney is vested petitioner with discre response submitted a written causes, tion in the Judge control of criminal which inquiry concerning Dostert’s wheth- public good is committed to him for present er he intended to and evidence to the grand jury, stating public for the vindication of the that he did not intend to interest.” present evidence This discretion extends “at this time.” Justice to the determina order, Dostert then tion type entered a formal com- of what of indictment will be mitting petitioner in a the Jefferson case. As we stated County Skinner, Jail “until such time as he at indicates W.Va. 278 S.E.2d at willing that he is prosecutor to state to the 631: in his Court that discretion “[T]he prepared obey may he is possible the order of the decide which of several charges bring against Court as entered.” he will an accused.” day, petitioner, That same while Part of the rationale behind this jail, petition filed his for a writ of habeas public torial discretion is attributable to the corpus, granted by which was prosecutor’s unique this Court. role in jus- the criminal approximately p.m., At petitioner system. 5:15 tice As is stated in Ethical Consid- excerpted portion 1. It should be proper noted that this not a statеment of the of law homicide of jurisdiction. Dostert’s to the in this at people and he is State at the will of of Professional 7-13 of our Code eration times to them. W.Va. all answerable Responsibility: 3, 2; Const., 2; art. 1.” art. art. § § § prosecutor responsibility of a recognized ulti This has also Court advocate; usual from that of the differs “[fjailure prosecutor per mately, merely justice, not duty is to seek imposed by form the duties W.Va.Code duty special exists be- This convict. him liable under 7-4-1 would make § represents (1) prosecutor cause: Const, 4; W.Va. art. W.Va.Code § sovereign should use re- and therefore (1979 Vol.); Replacement and 6-6-7 § discretionary exercise straint (1974 Replacement W.Va.Code § as in the se- governmental powers, such Vol.).” pt. 5, part, rel. Syl. State ex (2) prosecute; during lection cases Dostert, supra. Skinner advo- trial the nor- he make decisions cate but important one limita Virginia, client, and mally made an individual re upon prosecutorial discretion with tion public interest should affecting the those spect of whether determination all; (3) system in our fair to be bring charges what will given justice the to be accused brought is in West Code contained all doubts.... reasonable 7-4-1, benefit provides prose that when a cutor “has information of the violation discretion, how This prosecutorial any penal law such coun committed within ever, As is stated in is bounded law. ty, prosecute nec shall institute all 752-753, Skinner, S.E.2d essary offender_” against the proper proceedings at 631: added). (Emphasis As we [Wjhile has discretion Syllabus Point 7 of recently stated cases, he control of criminal must 12, Hodge 172 303 Ginsberg, v. W.Va. as fulfill that discretion so exercise “ (1983): 245 ‘It S.E.2d is well established 3, art. duty people. W.Va. Const. “shall,” that in the absence the word open The of the 2. courts State § showing contrary language in the statute grievances. ‍‌​​​‌​​​‌​​‌​​​‌​​‌​​​​‌‌​​​​‌​​‌‌‌‌‌‌‌​‌‌​​​‌​‌‍redress of all who seek Legislature, part intent on the of the 3, art. 17. As criminal W.Va. Const. § mandatory afforded a connota should be offenses the State offenses are 1, Syllabus tion.’ Point Nelson v. Public prosecuted the name of must be Board, 171 Employees Insurance W.Va. 6, State, 2, 8; art. W.Va. Const. §§ 445, (1982).” Similarly, in 300 S.E.2d 86 (1977 Replacement 62-9-1 W.Va.Code § Syllabus Point 2 of Thomas v. Firestone Fountain, Vol.); v. 27 Moundsville 763, Co., 164 W.Va. 266 Tire & Rubber (1885), prosecutor, 182 as the W.Va. (1980), “The S.E.2d 905 this Court stated: charged prosecuting such of officer statute, ‘any,’ should word when used fenses, duty the vic has a to vindicate any.” The limi to mean be construed right public’s and constitutional tim’s duty bring upon prosecutor’s tation of redress for a criminal invasion charges re criminal when information is “spirit long the law” has rights. The any committed ceived that crime has been long and it has held that been “[t]he requirement county in his that is accused, public rights has as as the well prosecuted proceedings instituted first one of the of these is “necessary proper.” redressing wrongs”. punishing or their Santee, 2 parte Va.Cas. 363 Ex “prosecutorial speak of When we (1823)_ prosecutor, The like oth discretion,” speaking of what we are officer, er must have sound executive “necessary prop course of conduct is reasons for his actions. particular given in a er” the circumstances respect to determination of 2 case. With Similarly Syllabus Point of State ex indictment, Dostеrt, 719, the ultimate 163 whether to seek an rel. Preissler v. W.Va. stated, whether, (1979), prosecu in the pros- 260 “The criterion must be S.E.2d 279 we appears professional judgment, tor’s ecuting attorney is a constitutional officer probable power evidence that there sovereign who exercises 139 Virginia (1981); see also Smith v. West that an offense has been to believe cause Education, 593, that the defendant has com- State Board of committed and 170 W.Va. mitted it. See West Virginia Code of Pro- 1, State 680, (1982); Syl. pt. 295 683 S.E.2d 7-103(A) (1982 Responsibility DR fessional Moore, 159 W.Va. ex rel. Brotherton v. Vol.): public prosecutor “A or Replacement ex rel. 934, (1976); State 230 S.E.2d 638 lawyer shall not institute government other Blankenship, Brotherton v. 158 W.Va. charges cause to be instituted criminal or Delardas 390, 467, (1975); 214 474 S.E.2d or it is obvious that when knows Monongalia County, County v. Court of supported by probable are not 847, 776, 779, 186 S.E.2d 850 155 W.Va. proba- “A cause.” It has been noted ex State (1972); State rel. West sufficiently mini- cause standard ... ble City Lodge, Police v. Fraternal Order of mal that a should not err Charleston, 420, 430, 56 deciding quantum of evidence whether 3, Prich (1949); pt. Syl. S.E.2d 768-69 adequate proceed- to institute DeVan, ard v. W.Va. 172 S.E. ings.” Bar Association Stan- American Matheny rel. (1934); State ex Syl. pt. Justice, 3-3.9 dards for Criminal Standard County Wyoming County, Court of (1980). utility Comment at 3-55 (1900). previ W.Va. 35 S.E. 959 As “probable cause” standard “ noted, ously rights has ‘[t]he to seek an tor’s determination of whether accused, well as the and one of the first of in particular indictment case is evidenced redressing punishing these is that of hearing stage preliminary its use at the Santee, parte Ex wrongs.’ their Va.Cas. See process. of the criminal v. Dos (1823).” State ex rel. Skinner (1977 Vol.). Replacement Code tert, 278 S.E.2d at 631. W.Va. respect to the determination With indictment and what to seek an believes, Therefore, if a citizen has particular indictment will be believe, probable reason to or knows case, repre- probable cause standard an individual with cause exists pros- sents the line of demarcation between crime, and of a the commission duty. prosecutorial discretion and ecutorial believes, believe, has reason ex rel. State 3 of Syllabus Point failing per to that the knows Airport Authority v. County Greenbrier upon nondiscretionary duty to act form his Hanna, 479, 153 284 151 W.Va. S.E.2d cause, such citizen seek probable this (1967), estab this Court stated the well prose compel to by of mandamus writ require “Mandamus lies to lished rule that: nondiscretionary perform his cutor to public officer of a non- discharge by a believes, judge has rea If a circuit duties. also ex rel. See State discretionary duty.” believe, probable to or knows son Fewell, 447, 294 Rose v. 170 W.Va. S.E.2d to an individual with cause exists Barker, Perry v. 434, (1982); 169 437 crime, of a the commission 531, 423, (1982); Syl. 428 289 S.E.2d W.Va. believes, or has reason to believe Blankenship, v. Bagley ex rel. 6, State pt. failing per prosecutor is that the knows 630, (1978); Syl. 99 161 W.Va. 246 S.E.2d duty upon act nondiscretionary form his County Kanawha 6, State ex rel. pt. cause, may complain as probable Paterno, Building v. 160 Commission through prosecu may any other citizen 195, (1977); pt. Syl. 332 233 S.E.2d W.Va. compel com action to mandamus tion of a Rogers, v. ex rel. Goodwin 3, 158 State Further, just as prosecutor. pliance by the 1, (1975); 1041, Syl. pt. 217 S.E.2d W.Va. his preside over may not any other citizen Housing Virginia rel. The State ex complainant cause, must too so own Copenhaver, Development Fund v. con procedures judge follow circuit (1969). 636, This 171 S.E.2d 545 W.Va. of the West in Rule XVII tained that, recognized “Where Court has also of Record for Courts Rules Trial Court one, is a right sought to be enforced another appointment of (1983 Supp.) for citizen, sought by any can be mandamus peti mandamus hear the judge circuit Syl. pt. Myers v. taxpayer or voter.” Barte, tion. 279 S.E.2d probable aspect probable of the cause evidence there is cause to

One prosecutor’s is a on a discretion offense has been limitation believe that an commit- “overcharging” a crimi prohibition against ted defendant and that the has commit- guilty in order to induce a nal defendant it, justice ted shall forthwith hold him 3-3.9(e) of the American plea.2 Standard having jurisdiction answer the court Standards for Criminal Association Bar If try criminal cases. the evidence (1980)provides prosecu “The Justice cause, probable does not establish bring charges great or seek tor should discharged.... defendant shall be degree can reason er in numbеr than part prosecu- Professionalism on supported with evidence at trial.” ably be tor, however, through good faith exer- 3-3.9(a) of the As American Bar Standard discretionary powers, cise of presents for Criminal Justice sociation Standards prevent- the most efficient mechanism for (1980) provides: further ing overcharging in criminal cases. prose- unprofessional It is conduct for a action, present the petitioner institute, or cause to institut- cutor to in seeking to utilize self-restraint ed, permit pendency or to continued for involuntary indictment man- charges when it known that of criminal slaughter where all the information avail- charges supported by proba- premed- able him indicated an absence of A not insti- ble cause. should itation, malice, The respondent or intent. tute, instituted, permit cause to be however, judge, interfered with the exer- pendency of criminal continued by cise of prohibiting this self-restraint of sufficient the absence admissible grand considering jury anything but a support a evidence to conviction. murder in homicide indictment cases. Virginia Code of Profession See also West Replacement 7-103(A) (1982 Smith, Responsibility al DR State ex rel. Miller v. .); (1981), v. W.Va. Commonwealth St. 285 S.E.2d we Vol Pierre, stated, jury 377 Mass. 387 N.E.2d 1135 grand integral part “The is an (1979). judicial system enjoys special by relationship with the court which structural restraint One on a ex rel. Casey convened. See State ability overcharge tor’s is found in West Wood, 329, 193 W.Va. S.E.2d 143 (1977 Replacement [156 Code 62-1-8 (1972)]. special Because of this Vol.), relation provides: ship particular responsibili the court has a presented If the offense is to be ty jury insure the fairness indictment, the preliminary examination proceedings.” primary means justice shall be conducted responsibility which a trial court fulfills its county in which the offense was commit- grand jury proceed insure fairness ted within a reasonable time after the ings through grand its instructions arrested, defendant is unless the defen- examination_ jurors function, purpose, on their the dant waives If the de- procedures preliminary governing fendant waives examination to be followed their if, hearing, it ‍‌​​​‌​​​‌​​‌​​​‌​​‌​​​​‌‌​​​​‌​​‌‌‌‌‌‌‌​‌‌​​​‌​‌‍appears or after from the deliberations and determinations.3 In this (b) spectrum, right 2. independent At the other end of the its to call and interro- witnesses; abuse his or her gate discretion an unreason prosecute. able failure to See State ex rel. Skin (c) production right request its of doc- Dostert, 753, ner v. 166 W.Va. at 278 S.E.2d evidence, including exculpa- uments or other 631. evidence; tory (d) necessity finding credible evidence 204(1) 3. Section of the American Bar Associa- element of each material the crime or Jury (1982) provides: tion Model Grand Act bill; charged returning before crimes a true Upon impanelment grand jury, of each (e) right present its to have the it properly court shall instruct or with draft indictments for less serious grand jury, and shall inform the requested by originally prose- than those following: inter alia of the cutor; (a)its duty inquire into offenses (f) obligation secrecy; alleged laws the criminal to have been com- jurisdiction; mitted within the

141 (1981 357, Virginia Hayes, 663, 52-2-6 434 regard, West Code U.S. 98 S.Ct. 54 § Vol.), provides: grand (1978); “The Replacement Freeland, L.Ed.2d 604 State v. 295 being sworn, charged shall be jurors, 367, after (1983); People Or. 667 P.2d 509 v. judge, and shall then be sent to their Thomas, Mich.App. 667, 118 325 N.W.2d roоm.” (1982); Haskins, 536 State v. 188 Conn. 432, (1982); 450 A.2d 828 v. State McMa The Fifth Amendment to the United hon, 97, 183 N.J.Super. 443 A.2d 258 part, provides, States Constitution that: (1981); 886, Bartlett, State v. 210 317 Neb. for a person “No shall be held to answer (1982); Herme, N.W.2d 102 v. 298 State crime, capital, or otherwise infamous un (Minn.1980); N.W.2d 454 Commonwealth presentment less on a or indictment of a ” Eisemann, 543, III, Pa.Super. v. 276 419 A.2d Jury Similarly, Grand .... article (1980); People Lewis, pro Ill.App.3d 4 591 v. 73 of West Constitution § 361, 436, person (1979); vides that: “No shall be held to 25 Ill.Dec. 386 N.E.2d 910 treason, crime, felony answer for or other McKinney, Commonwealth v. 594 S.W.2d cognizable by justice, unless on Evans, (Ky.App.1979); People v. presentment grand or indictment of a 4, (1979); Mich.App. 287 N.W.2d 608 State legislature jury.” Our has mandated that 599, Karpinski, 92 Wis.2d v. N.W.2d grand jurors least of the must twelve “[a]t (1979); Worthey, State v. Wash. finding making concur in or an indictment (1978); App. 576 P.2d 896 Common presentment....” West Code Corp., v. 374 Mass. wealth United Food (1981 Vol.); Replacement 52-2-8 see also § (1978); 374 N.E.2d 1331 v. State Good 6(f). case, present In the W.Va.R.Crim.P. win, (1976); 116 N.H. 351 A.2d 59 State Judge attempted usurp pow ‍‌​​​‌​​​‌​​‌​​​‌​​‌​​​​‌‌​​​​‌​​‌‌‌‌‌‌‌​‌‌​​​‌​‌‍ Dostert Murphy, 113 Ariz. 555 P.2d 1110 grand jury by substituting er of the his (1976); Pruett, 213 Kan. State v. proper view on the indictment returnable (1973). P.2d 1051 of discretion No abuse required for that of the twelve members. part petitioner appears on the so, doing Judge Dostert ventured be fact, given the record in this case. yond judge’s the trial traditional role of case, in this a clear abuse of circumstances supervision grand jury proceedings into might if discretion have indeed resulted participation. a circuit role While complied Judge petitioner had Dos- supervisory powers court has over present murder indict tert’s order to jury proceedings preserve integrity ment. grand jury process and to ensure the (1976 Virginia Code Re proper justice, may administration of Vol.), “If, provides, part, that: placement prohibit grand jury consideration of of case, prosecuting attorney and any particular class of fenses within act, if in his assistants unable crimes. improper of the court it would be opinion In addition to Dostert’s act, his assistants to the court for him or improper grand jury pre interference with practicing appoint competent some at shall rogative, unreasonably in actions also regard torney to act that case.” With fringed upon petitioner’s discretion in application disqualification of this stat determining type what of indictment would ute, Syllabus Point 3 of ex we held State previous Payne case. As Dostert, supra: Preissler v. rel. noted, prosecutor in ly his discretion “[T]he may prosecuting attorney be Before a may possible decide which of several acting particular in a disqualified bring against he will an accused.” imposed relieved of the duties case and Dostert, 166 ex rel. v. W.Va. State Skinner by and upon him the Constitution 752, an abuse at 278 S.E.2d at 631. Absent disqualifica- statute, for his the reasons discretion, the judicial of interference with record, and appear on the tion must prosecutorial judgment of as to exercise as to question factual there is where charge bring prosecu in a criminal what to acting in of the propriety the impermissible. tion is Bordenkircher v. rights advisable. (g) as the court deems such other duties and Payne in notice indictment the case matter, he afforded der constitut- must be the a for a citation of criminal con- heard. ed basis opportunity to be tempt. addressing a similar abuse of that circuit recognized has This Court Judge contempt power, Dostert’s this particular responsibility “a have courts Syllabus in of stated Point 3 State ex Court proceed grand jury of fairness insure Dostert, 562, v. 170 W.Va. rel. Askin Smith, 168 rel. v. ex Miller ings.” State (1982): S.E.2d 756, 506. 285 S.E.2d at at W.Va. jurisdiction a court has to issue a Where recognizes This Court further order, the fact that such order courts become aware that circuit erroneous, improvident- irregular, or is is prosecutorial discretion potential abuses rendered, ly justify one in dis- does fairness could undermine the order, violating regarding or judge circuit grand proceedings. If a jury a citing then error as defense court’s relationship in the be to intervene desires Where, contempt. a how- jury prosecutor, a and a tween ever, judge jurisdiction, lacks or is proper complaint by a con of a absence power authority to render the without citizen, bringing a he can do so cerned order, comply refusal such with order Virginia motion disqualification under West punished contempt. may not be Vol.).4 (1976 Replacement Code 7-7-8 power Judge sponte Dostert had no sua in judge the'moving party circuit When a petitioner present authority to order the disqualification prose of a attempted murder to the only a indictment cuting attorney Virginia under Code West Therefore, petition- Payne case. Vol.), (1976 should Replacement comply pun- er’s refusal to could 3C(1) under of the disqualify himself Canon contempt. ished as (1982 Virginia Judicial of Ethics West Code Vol.), proce Replacement and follow the III. contained Rule of the West dures XVII petitioner pro The also seeks to Trial Court for Courts of Rules interfering Dostert from fur hibit (1983 Supp.) appointment for the Record presentment in ther case judge disqualifi another circuit to hear the grand jury. Recently, volved before cation motion.5 Point 2 Syllabus of State ex rel. Green v. 222, Dostert, 172 304 S.E.2d 675 W.Va. II. (1983), general rule Court stated “ lies prohibition now ‘The writ of as a We consider whether that: right inferior petitioner’s obey Judge refusal to Dostert’s matter of when the court ... presentment legitimate powers.’ Syllabus mur- requiring the of a exceeds its оrder judge prosecutions be 4. We also note that when a circuit criminal offenders. prosecutor’s a right that a actions constitute Consequently, public lieves has know Responsi violation of the Code of Professional bility, why attorney repre- have selected duty report he has a such misconduct salary they pay sent them whose 3B(3) Eth under Canon of the Judicial Code of taxes, given prosecute their unfit to case. (1982 Vol.) Replacement ics to the prosecuting attorney constitutional Legal Bar Committee on Ethics. See State State sovereign power who officer exercises 8, Dostert, at 728 n. ex rel. Preissler people and the State at the he is at will n. 8. 260 S.E.2d at 285 Const, times to them. W.Va. all answerable 2; art. 1. In § § § art. words, art. other importance 5. This Court discussed the of a hear issue, purposes pros- for the of this ing disqualification the record in of a on attorney ecuting trustee and servant of is the Dostert, State ex rel. Preissler v. people all times amenable them. 732-733, 163 W.Va. at 260 S.E.2d at 287: Const, The court W.Va. art. 2. must prosecutor voluntarily recuses Even whеre every safeguard provide to insure the case, discharged himself from a he can be being properly the State is business of [only] obligations from his constitutional hearing provides A record conducted. on the appears when it on record that his reasons record of the with an accurate disqualification or im- for are not frivolous officials, upon attorney of their proper prosecuting elected actions elected .... people county represent performance. them evaluate his

143 5, v. because it is part, Point State ex rel. Smith itself an affront to the re- Bosworth, 145 117 S.E.2d 610 quirement W.Va. that courts decide “cases (1960).” See also West Code presented, and controversies” vigorously I Vol.); (1981Replacement State ex dissent. Smith, supra; Miller v. State ex rel. rel. The issue that faced today this court was Nuzum, 740, 248 McCartney v. 161 W.Va. proper whether it was for a judge circuit (1978); Peacher S.E.2d 318 State ex rel. v. require prosecutor seek a Sencindiver, 160 233 S.E.2d W.Va. grand jury, indictment from a to read that (1977); Wood, State ex rel. Carson grand jury an instruction which improperly (1970); 154 W.Va. 175 S.E.2d homicide, stated West law on 660, 130 Ferguson, Rakes v. jail prosecutor failing for to comply (1963); Sulphur S.E.2d 102 White with his directives. I am in wholehearted Jarrett, 124 Springs, Inc. v. W.Va. agreement majority with the that the cir- (1942); Ry. S.E.2d & Western Norfolk judge’s beyond scope cuit actions were Co., v. Pinnacle Coal. W.Va. authority prosecutor of his and that (1898); County S.E. 196 Wood Court v. seeking correct in not was a murder indict- 362, 12 (1890). Boreman, 34 W.Va. S.E. 490 jailed ment and should not for have been precluding Because from contempt. Regarding the rest of considering lesser included offenses today’s opinion, it is hard to determine legitimate pow- cases exceeds the homicide troubling whether it is more it is because court, petitioner ers of a circuit is enti- entirely entirely irrelevant because prohibiting tled to a writ Dostert wrong. perhaps Because its irrelevance is interfering present- further defect, begin I the more obvious will with a Payne case ment before few comments there. jury. today’s opinion The reader of will be reasons, foregoing petition- For the right of an treated to a discourse on the requests corpus er’s for writs habeas go individual citizen to to court when prohibition granted. improperly. has acted believes a granted. Writs Although always pleased I am to hear of my colleague’s unique learned theories on NEELY, Justice, concurring in Opinion general jurisprudence, one cannot issues part dissenting part: help place such a discus- but wonder what Again, clamantis in deserto. The vox brought by in a case that was not sion has re- of cases in which I have felt number case is this private citizen. This before ‍‌​​​‌​​​‌​​‌​​​‌​​‌​​​​‌‌​​​​‌​​‌‌‌‌‌‌‌​‌‌​​​‌​‌‍point court has quired to out that brought corpus petition on a habeas Court questions attempted to answer no one jailed for con- who was asking grows alarming at an rate. It is official whose re- tempt. As an elected that hard cases lead to law. axiomatic bad grand juries, sponsibility it is to deal with prone Unfortunately, majority seem question to his meaningful there is no easy the formation of bad law even us. As the issues before standing to raise Although agree I with the narrow cases. peti- needed to draft his who an individual relator should result in this case that the cell, ques- can be no jail from a there tion I jail, released from the local am Thus, reading stake. personal tion of dicta sharp disagreement with some of the make one in this case would of the record surrounding implications it it and the dire upon majority feels called why the wonder professional law enforce- would have for allowing individual lay a foundation Furthermore, I am ment in this State. question the actions citizens to majority opin- by the author of troubled question of that raises tors in a case cover ion’s efforts to make law will prosecutors to proper for like the case before us situations not at all judges. The circuit actions of question the related to other concrete factual but rather course, is not in question, to that answer us. Because situations that are not before case. record of this opinion and the majority makes bad law portion of the Next, majority cites a unnecessary, detour that only is Not for Association’s Standards blatantly wrong. American Bar however, clearly and states, probable “A Justice that bad result Criminal because reaches majority The sufficiently minimal ... premise. Syl- cause standard indefensible it starts with deciding err in states, prosecutor should not today’s opinion that a 1 of Point labus is ade- quantum of evidence of whether to the determination respect “With proceedings.” institute criminal quate to an indictment and what seek understood perhaps best That comment particular will be indictment actual standard light of the text of the repre- probable cause standard case, the in full: that states pros- line between of demarcation sents prosecutorial discretion ecutorial (a) conduct for a unprofessional It is hardly a model That duty.” institute, statement or cause be prosecutor draftsmanship. To state that instituted, of careful permit or to the continued line of demarcation” probable cause is “the charges when it is pendency of criminal separates. If the it sup- not tell us what charges does are not known that that it is not within majority’s point prоsecutor were A ported by probable cause. prosecutor institute, to indict the discretion of a cause to be institut- should not has ed, pendency not believe he permit he does the continued cases where fact, cause, all agree. charges I of suffi- probable would the absence support see this as an authorities would cient admissible evidence not, however, does act. That conviction. ultra vires import majority’s appear to be (b) obliged to prosecutor The is not Instead, that a they seem to believe rule. the evidence present charges all which must in- has no discretion but prosecutor prosecutor may in might support. The probable cases he has dict all where good cause some circumstances rule; it is a That is not a bad cause. public interest de- consistent with the rule! terrible prosecute, notwithstanding cline to may exist evidence sufficient ma- authority upon which the Even the Il- support a conviction. which would points clearly in a rely jority claims prose- factors lustrative of the which opposed the re- diametrically direction exercising may properly consider cutor today. majori- Court reaches sult this are: his or her discretion ty cites the Code of Profes- (i) prosecutor’s reasonable doubt 7-103(A), Responsibility which sional guilty; in fact that the accused is prosecutor or other “A states: (ii) of the harm caused lawyer not institute or the extent government shall offense; charges cause to be instituted criminal or it is obvious that the when he knows (iii) disproportion of the authorized probable supported by are not in relation to the punishment [emphasis It is elementa- cause.” added]. offender; offense or the mandatory of omis- ry logic that a standard (iv) possible improper motives of a imply in the reverse sion does complainant; mandatory there is a standard situation testify; (v) of the victim to reluctance were, If the rule “A commission. (vi) cooperation the accused in the accept tor shall not bribes from individuals others; or conviction apprehension cause,” against probable he has whom not follow “A shall would (vii) pros- availability and likelihood accept bribes from individuals jurisdiction. another ecution probable cause.” whom he does have prose- (c) making the decision to Yet, prose- majority states that because cute, give no should they do not cutors should never indict when personal political advan- always weight to the probable they have cause should might disadvantages tages or probable cause. indict when do have theless, today’s single if any his or under decision to enhance or to a desire involved enraged citizen is he has been tem- because record of convictions. her in porarily imprisoned the back seat of a a serious (d) involve In cases which his car for hire or frustrated because prosecutor community, the to the threat of a screen view movie was obstructed prosecution deterred should not be bring cap, requir- he can an action jurisdiction juries baseball fact that by the ing prosecutor precious re- acquit persons accused to dеvote tended to have act in prosecution kind of criminal to the of trivial crimes. particular sources question. prosecutorial The need for discretion bring (e) prosecutor The should crimes. Prosecutors extends to serious in or de- charges greater number seek par- in may not to indict also be motivated reasonably supported gree than can be they ticular circumstances because believe trial, [emphasis evidence at with added] suspect more useful as a that the would be that the force of The comments indicate com- against others who have state witness place requirement this standard is not to Similarly, a mitted more heinous crimes. prosecutor to indicate the neces- on the but possible of a fed- be aware The giving him discretion. sity of broad carry indictment that would eral charg- commentary begins by stating, “The frus- penalties, but which would be stiffer prosecution the heart of the ing decision is if jeopardy by principles trated of double given to a The discretion function. broad prosecutor aсted first. Under the state deciding bring in whether to pros- for a ruling impermissible today’s choosing particular charges and in highly of these rele- ecutor to consider requires great- that the charges to be made supervi- imposing judicial vant factors. power see that this est effort be made to majority raises prosecutors on sion By very fairly uniformly. its used questions than it answers. Some more discretion cannot be nature the exercise of noted a federal questions were those [emphasis to a reduced added] formula.” of mandamus rejecting a writ court contemplate, a the ABA standards As the victims of sought by the families of prosecutors indict all requirement compel prosecution criminal acts to certain probable cause have cases cases: those particular individual has serious against a prosecutor be point would the At what limited offices have flaws. Prosecutors’ investiga- further call a halt to entitled to frequently necessary for and it is resources unlikely productive? What to be tion as judgments con- professiоnal make them to used to evidentiary standard would be of those re- cerning optimal allocation prosecution should be decide whether against currently the law sources. It is judgment would much compelled? How Virginia to drive a taxicab with allowed? Would [prosecutor] be is convicted of locked and one who doors strong limit himself to permitted be up year to a can sentenced this crime be pursue weaker rather than case “test” W.Va.Code, It 61-2-17 prison. [1923]. factors would collateral cases? What engage in horse against the law to is also not to a decision permissible basis fair, mile of a state trading one within of another pendency e.g., the prosecute W.Va.Code, [1923], or to wear against elsewhere proceeding W.Va.Code, theater, 61-6- hat in a per- limited parties?_ With same must de- prosecutors Because 16 [1923]. disposal, what and facilities sonnel protecting of their time vote the bulk required prosecutor be priority would of serious perpetrators citizenry from investigation or in which give cases against рrop- person and crimes by the court? was directed prosecution luxury vigor- erty, they do have Facility v. Attica Correctional Inmates of these lesser ously prosecuting some (2nd Cir. F.2d Rockefeller, duty, I Despite this dereliction of crimes. 1973). outcry. any public Never- am unaware of

terms which empowering statute that statute that official shall do what he ly mandatory date. less tions for the reminds us that which exhaustive “indict.” Unfortunately, dictionaries reveals no definition of those primitive. We are treated to tensive reasoning “shall.” “any” formula, of Cir.1983). the extent to quently case in individual United tion. prisonment, before In its zeal give every case damental events court cised. any discretion any meaningful interfere with W.Va.Code, area of aAs forthcoming from the situation under his A statute importance are, and that States professional establishes broad underscored When All of this this court resorts to unrelated it, W.Va.Code, that can general to which analysis plea bargains, the “necessary gives prosecutors as a requires no equates cases was сritical Ninth Circuit. our dealing reduce discretion prosecutorial discretion statute; Miller, person’s with sense be said rule, independent considera- majority to judicial of both judgment to a words professional its meaning is them with in a recent meaning 7-4-1 [1971] the individual ^[1971] with necessarily fact-in meaningful defini says forcefully and elo- very exercise. When believes proper authority the existence be described rather, freedom has been recognizes the policy in that statute issues as legal proper.” system that a F.2d 562 is somewhat Dealing with illuminating. a clear man court stated: that of shall of a level of “analysis” the word judgment is based it is an any federal proper cannot judges sagely simple hard exer- must case fun- (9th lay An im- on of is is in a case, State ment was an authority which extra-judicial order.” rant hand miss or to nolle because yond his own mus Judiciary”, in Prosecutorial on citizen has a those few ed District seemingly ably prevailed. and Criminal few cases American mandamus Relationship of the scious forcement Supreme Court tional violation.” ecutor to (1962), 1977). U.S. 368 U.S. Ameriсan other.” Linda L.Ed.2d 536 citizen nal offenses—falls fact, Incredibly, principle. this matter. judge prior definitive statements of is a compelling a 278 S.E.2d states, “The as Justice Marshall ex rel. Skinner v. while 614, 619, prosecution a case lacks a exercise of some There to abandon this Attorneys choosing authority. Syllabus Point 9 of proper in force jurisprudence at cases the is not in has blissful has been today’s right to actual (1973). appealed from this is no judicially 82 S.Ct. Justice, noted recognized that, him Today R.S. prosequi exercise of majority opinion not to decision to move itself a holding ignorance sound reason of its own (J.J. fact, S.Ct. view to seek a writ not be invaded nonprosecution that there Prosecutor (1981) v. jurisprudence Because National Tim Dostert, we are told indict, cognizable interest uniformly Richard Oyler selectivity in en- Douglas, one commentator has prosecute federal constitu- a criminal war 1146, 1149, of the Skinner least, Murphy, “The Relationships 7 L.Ed.2d on the prosecutorial clearly dicta stated, of even and that weight. that state “[T]he has invari- v. havе been College of Court, the of manda prosecute with the for West a exhibits Bowles, U., 410 private accept- Editor, to dis that a where by an is of an other pros- “[I]n con- law be its 35 discretion of that need for in the exercise nothing to do expressed in a case has that power. rights question of citizens to with the Sylla prosecutors, I assume that actions of wrong majority plainly Because the of remains the law bus Point 9 Skinner asserting prosecutors any that not have do jurisdiction. indicting discretion in individuals when probable exists, opinion a hor- majority cause the second level also includes professionalism their citizen has a on tatory house cards—that statement right require prosecutors perform prosecutors in the exercise part prose- is the check on indicting ministerial function for crimi- their discretion best States, (D.C.Cir.1967), agree 382 F.2d Although I would cutorial abuse. stated: sentiment, me as it strikes an odd goes in a case that to such pronouncement adapted subjects judi- are less Few lengths negate limit and in fact to great cial than exercise the Exec- review prosecutorial deciding discretion. The ma- any real utive of his discretion when opinion pro- to institute criminal jority’s evinces a clear belief that exercising ceedings precise or what shall be capable prosecutors are or whether to dismiss a criminal made professionally discretion and seeks turn proceeding brought. once publicly-elected officials into mere ministe- rial functionaries. Cox, Similarly, United States denied, (5th cert. Cir.), F.2d unnecessary a step only Such is not and 85 S.Ct. 14 L.Ed.2d 700 U.S. demeaning already po- to officials are who (1965), court stated: another federal accountable, ignores litically the Bar, Although as a member of long judicial refusing of tradition inter- attorney the United States is an offi- for of discretionary fere with the decisions oth- court, an cer of the he is nevertheless government. again, er branches of Once Government, official of the executive Miller, authority supra, speaks with depart- of executive as an officer common sense: ment that he exercises a disсretion as powers Separation requires that the a prosecu- or not there shall be judiciary independent remain of execu- follows, It as tion in a case. Charging gen- tive decisions are affairs. separa- an incident of constitutional erally prosecutor’s within exclusive powers, tion the courts are not to that representatives domain. Prosecutors — interfere with the free exercise of govern- of the executive branch of the powers attorneys of discretionary judi- not mere ment—are servants in their over States control United ciary. prosecutorial in- The tradition of prosecutions. dependence recognized is both case stop telling opinion Today’s does law the Federal Rules Criminal prosecute they must prosecutors that Procedure .... probable exists. It also whenever cause accept are Although courts free they prosecute “in tells them that cannot reject charge bargains, they individual evi- of sufficient admissible absence rules creating should avoid broad Thus, prоs- a support dence to conviction.” prosecutorial indepen- limit traditional , anything for less ecutors can never indict Generally, wary should be dence. courts crime, they can never “right” than the prosecutorial guessing choices. of second “right” than the anything indict more for Categorical limitations on bar- then, of their discre- crime. is left What bring gains prosecutors to may force tion? not, charges they ordinarily would or to fact, down the standards laid ordinarily they maintain would today eliminate majority ongoing investigations uncov- dismiss as discretion, regime a they torial establish er information. Such rules thus more frequently will faced prosecutors be impermissible intrusion into constitute contradictory requirements. There with properly what is executive’s exclu- big probable on between cause a difference sive domain. having sufficient admissi- one hand support conviction on the Burger, hardly a man with ble evidence Chief Justice crime, they indict if being recog- other. Prosecutors must reputation on soft cause; they in- cannot necessity maintaining separa- probable have but nized the they evidence judicial dict unless have sufficient the executive and tion between they proba- In cases where have Writing for the convict. in this area. branches cause, not sufficient evidence Appeals for the ble but United States Court convict, inevitably violate one Newman v. United will District of Columbia duties, major- alleged statutory judgment can extraordinary their seek an Furthermore, remedy the statutes. ity only negate misreads that would not Skinner, supra, who professional under prosecutor’s judgment ul- but statutory require- comport fails timately lead to his removal from office. ject to enter into if face of all ments of There are other smart himself to of the W.Va. Constitution. lawyers W.Va.Code, 7-4-1 this, an action under article it will exhibit a practical problems service as hardly certain ^[1971] prosecutors. surprising hesitancy with is to be confidential. The United States sub- IX, lar individuals. One of the critical charac teristics of the or reasons to believe that choosing concerned citizens are One must also wonder how all of these or not grand jury process choosing going to indict prosecutors to have beliefs is that it particu today. the rule this court establishes Even Supreme recognized Court has “Un grant majority if we its ludicrous read- ordinary judicial inquiry, like an pub where ing prosecutorial of the statute on discre- rule, licity jury proceedings tion, prosecutor’s mandate is that he States, are secret.” Levine v. United probable take action when he believes 610, 617, 1038, 1043, U.S. 80 S.Ct. 4 L.Ed.2d However, majority cause exists. would (1960). Indeed, early as as 1914 West bring allow citizen to an action in manda- Virginia recognized “The law holds mus prosecutor any in case secrecy inviolate the proceedings of before where that citizen probable believed the grand jury.” Wetzel, State v. cause existed. He would not need to show 7, 14, (1914). 83 S.E. Criminal prosecutor that the consciously acting was charges matters, are serious and citizens duty. in dereliction of Leaving aside targets who are grand jury investiga of the fact that it likely would seem far more tions should not subjected public to den prosecutor’s to be within the competence to grand jury prosecutor unciation if a do probable existed, determine whether cause adequate not find reason to indict. As placing publicly danger elected official recently as the American Bar Associ being disgrace of job removed from his ation confirmed as one of its fundamental any disagrees time a citizen judg- with his Jury Principles: Grand “The confidential ment weight as to the of the evidence in a grand jury proceedings nature of the re specter case raises of quires identity ap of witnesses government by lynch imag- mob. One can pearing grand jury before the be unavail ine numerous cases in which some sectors public to scrutiny.” able A.B.A. Grand public charge prosecutor with Jury Policy Act, Principle and Model duty dereliction of because he did not (1982). explanatory The comments on that charge a defendant enough with a severe principle illuminating: are crime, public-spirited while other citizens seek to him have indicted overzealously for Principle 21 provides No. that the сon bringing any charge at all. grand fidential nature of jury proceed ings requires identity that the of witness fact, one imagine need not circum- appearing grand es before the jury be stances at all. The case before this is court public scrutiny. Shielding unavailable to problem. petitioner illustrative of the The identity necessary prevent their to un an involuntary indictment for man- just harm to slaughter potential witnesses and de in a case where some citizens practice might jurisdic fendants. The in some have believed that the death should having exposed pub have tions of witnesses been treated as accidental. From the judge’s actions, press emerge lic and apparent they from the that other might citizens room is an believe that a unfair one—it first degree murder required. reputations by was taints the witnesses’ Based on his professional experience, they appearing. mere fact that are The reached a ground. importance maintaining decision on firm secrecy middle ground begins That very shaky grand jury proceedings to look already had been indeed when disagrees Association, when, citizen who recognized by with right strengthened bring individual citizen has a ac- policy, urged its compel prosecutions. disclosure of for unauthorized tions mandamus penalties jury The Justice De information. rulings prosecutor’s Those tie the would princi supported in 1977 partment law hands make effective enforcement ple. They more make se- even difficult. would right bring every If citizen has a crecy grand jury proceedings impossible require prosecutor action in mandamus to responsibility with and burden the courts in cases where that citizen believes indict listening unfounded for exists, probable it follows that citi- cause every self-appointed guardian right have a to know whether the zens prosecutions. They interest de- bring planning an indict- publicly mean the status of a elected and information way can ment. principles accountable official violate open up grand jury be made available separation powers. majority That the Thus, proceedings. long-standing prin- badly err on issues that were nоt would so presumed citizens innocent ciple that raised the case before it is even guilty proven and that individuals’ until yet I heard argument most effective have long reputations should not be shattered judicial restraint. charged have before ever been is to because of any crime be sacrificed vague, unsupport-

some unarticulated prosecutors in this that the state

able belief doing their jobs.

are not course, prosecutors will sometimes

Of Certainly, mistakes. will often

make anger that make decisions some individual S.E.2d 426 community. job Inherent E. RUSHMAN Thomas tough judgment necessity make calls about, people cases that care contro- territory. Neverthe- versy comes with the LEWIS, Commissioner, Gretchen O. less, fact that decision is Fund, Compensation Workers’ universally applauded does not make it Toy ‍‌​​​‌​​​‌​​‌​​​‌​​‌​​​​‌‌​​​​‌​​‌‌‌‌‌‌‌​‌‌​​​‌​‌‍Factory. Lewis Marx discretion, princi- the one an abuse 15996. No. ple is able to find majority authority is “Absent an significant Appeals of Supreme Court discretion, judicial interference abuse Virginia. judgment of prosecutorial exercise with the March 1984. charge bring in a criminal as to what impermissible.” prosecution is example

Today’s case is an exercising judgment professional

tor sound integrity in of considerable the face that

personal To the extent duress. principled opinion supports

majority

stand, agreement. I am wholehearted injustice

However, grave it seems to me a opportunity case as make

to use this an rulings unsupportable that are

two other potentially of law and disas- principles (1) namely, policy; as a matter of

trous in de- prosecutors have no discretion individual

ciding once exists; and, (2)

probable cause

Case Details

Case Name: State Ex Rel. Hamstead v. Dostert

Court Name: West Virginia Supreme Court

Date Published: Mar 9, 1984

Citation: 313 S.E.2d 409

Docket Number: 16121

Court Abbreviation: W. Va.