State v. CookState v. Cook
- Reporters:
- ,
- Before:
- Carley
Lead Opinion
Mr. Jоseph L. Chambers is the Director of the Prosecuting Attorneys’ Council (Council) which was established by
Appellee-cross аppellant Cook is the Judge of the Probate Court of Chatham County. Pursuant to
The indictment was then presented to the grand jury. The proceedings were conducted entirely by Director Chambers, Mr. Sparks, Mr. Lanier and Mr. Olson. Neither the District Attorney himself nor any other member of his staff was present. A twenty-six count indictment was returned against Judge Cook. Judge Cook then obtained a certificate of immediate review and petitioned this court for an interlocutory appeal from the denial of his motion to disqualify the Special Assistant District Attorneys. The petition was denied.
Thereafter, when all the supеrior court judges of the Eastern Judicial Circuit recused themselves, a superior court judge from another judicial circuit was appointed to preside over the case. When yet another indictment was returned against Judge Cook, he filed several *435defensive motions. One of Judge Cook’s motions again sought the dismissal of the indictments because “[t]he presentation of evidence to the Grand Jury by the Director of the [Council] and his assistants was unlawful and violated
Case Number 68419 — Cross-Appeal
1. The State has moved to dismiss Judge Cook’s cross-appeal. Resolution of issues raised by the State’s motion to dismiss necessitates the following statement of the chronology of events: On November 15, 1983, the order denying Judge Cook’s motion to dismiss the indictments for alleged prosecutorial misconduct was entered. Thereafter, Judge Cook did not comply with the procedure of
“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . . In civil cases, the appellee may institute cross appeal by filing notice thereof within 15 days from sеrvice of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him. . . .” (Emphasis supplied.)
This court is without the authority to extend the applicability of the civil crоss-appeal procedure of
The viability of what is denominated as a “cross-appeal” in a criminal case must accordingly be based upon the applicable statutory requirements regarding indеpendent appeals and not upon the provisions of
Case Number 68280 — Main Appeal
We must address three separate issues which are raised by the facts of this case. The first issue concerns the general authority of district attorneys in this state: Whether a district attorney is authorized to appoint anyone to serve in the capacity of a “Special Assistant District Attorney” for his circuit. If the law does recognize the authority of a district attоrney to make such an appointment, the second issue concerns the specific qualifications of those individuals who were appointed in the instant case: Whether Director Chambers, Mr. Sparks, Mr. Lanier and Mr. Olson were disqualified from their initial appointments by reason of their employment by the Council. If there was no initial disqualification, the third and final issue concerns the actual performance of Director Chambers, Mr. Sparks, Mr. Lanier and Mr. Olson in their capacities as Special Assistant District Attorneys: Whether they were given or exercised too much unsupervised authority in handling the case against Judge Cook.
2. Under former
Former
There is no express statutory prohibition on the appointment by a district attorney of a Sрecial Assistant District Attorney. Since such an appointment is premised upon the inherent authority of the district attorney to obtain assistance in the performance of his prosecutorial duties, compliance with
3. The express purpose of the Council is “to assist the prosecuting attorneys throughout the state in their efforts against criminal activity in the state. . . .”
The prohibition of
We find no reason why the assistance which the Council is statutorily mandated to provide to district attorneys should not include making the personal services of its employees available to a district attorney upon his specific request. There is no express prohibition on the giving of such assistance. While there is likewise no express grant of authority in this regard,
Judge Cook further contends, however, that the appointment of Council employeеs would be violative of former
As we have already held, former
4. It appears that the gravamen of Judge Cook’s attack on the appointments in the instant case is his contention that the four individuals were not really appointed to be “Special” Assistant District Attorneys but were given and exercised authority to act as either District Attorneys Pro Tern or as assistant district attorneys.
It is true that the older cases which recognize the authority of a district attorney to appoint an assistant draw a distinction between an appointment limited to assisting a district attorney who was physically present during the proceedings and a broader appointment to “act in the place” of a district attorney who was not physically present. See generally Mach v. State, supra. However, such cases must be construed in light of the then-existing absence of any express statutory authorization for a district attorney to delegate the performance of the duties inherent in the prosecutorial function. Absent such express authorization, a prosecution could, in essence, be pursued solely by the individual who held the office of district attorney. Thus, in order to establish that a district attorney was merely being rendered assistance in a prosecution rather than being totally replaced in the performance of duties which only he was expressly authorized to carry out, it was necessary that the district attorney’s “direction and control” of the proceedings be evidenced by his physical presence.
*440However, a district attorney now has express statutory authority to employ assistants who “shall have such authority, powers, and duties as may be assigned by [him.]”
The only remaining question is whether the requirement of the district attorney’s physical presence during a prosecutorial proceeding is obviated in the case of a “Special” Assistant District Attorney. There is little real difference between an assistant district attorney and a “Special” Assistant District Attorney. There is now an express statutory authorization for the appointment of assistant district attorneys as members of the district attorney’s general and on-going staff, whereas the appointment of “Special” Assistant District Attorneys is based upon the inherent authority of the district attorney to secure outside assistance in the prosecution of a specific case. If the physical presence of a district attorney is no longer necessary to his “direction and control” over a prosecution which is being conducted at his dirеction by his general and on-going assistant, there appears to be no reason why his presence should necessarily be required with regard to a prosecution which is being conducted by one whom he has specially appointed for that very purpose. If the “Special” Assistant District Attorney possesses the same qualifications as an assistant district attorney, his authority to render assistance to the district attorney should be no less expansive or restricted. “ ‘Assistant or deputy prosecuting officers and special assistants to the regular prosecuting offiсer, duly authorized to assist the latter in the discharge of his duties, are invested with the same rights and subject to the same restrictions, with respect to appearing before the Grand Jury and participating in the proceedings before that body as the regular prosecuting officer. . . .’ [Cits.]” (Emphasis supplied.) Mach v. State, supra at 157. Accordingly, we hold that the mere physical presence or absence of a district attorney at a prosecutorial proceeding is not dispositive of whether a “Special” Assistant District Attorney was under the appropriаte “direction and control” of his ostensible superior or was exercising authority in excess of that appropriate to his purported subordinate position.
A proper standard for determining whether a “Special” Assistant District Attorney has been given or has exercised excessive authority is the following: “Under the law the whole proceeding, from the time the case is laid before the [district attorney] until the renditiоn of the verdict, is under the direction, supervision, and control of that officer, subject to such restriction as the law imposes. Counsel employed to assist in the prosecution of criminal cases can perform no duties as such except those agreeable to and under the direction of the [district attorney.]” Jackson v. State, 156 Ga. 842, 850 (120 SE 535) (1923). The law imposed no restriction on the District Attorney regarding the appointment of “Special” Assistant District Attorneys in general or the appointment of employees of the Council to that position specifically. Thеre is nothing in the instant case to demonstrate that the four Special Assistant District Attorneys performed any duty which was not “agreeable” to the District Attorney who appointed them. Compare State v. Harton, 163 Ga. App. 773 (296 SE2d 112) (1982). Although Director Chambers’ appointment was for the purpose of directing and conducting the prosecution against Judge Cook, there is nothing which would indicate that, in making that appointment and the subsequent appointments, the District Attorney intended to allow the ultimate direction and control of the prosecution to pass from him into the hands of his special assistants. The appointments were clearly contingent upon the District Attorney’s continuing “pleasure.” Accordingly, we construe the grant of prosecutorial authority as a limited one and find that the prosecution of Judge Cook is being conducted by the District Attorney acting through his authorized assistants and not by the assistants themselves.
5. The trial court erroneously granted Judge Cook’s motion to dismiss the indictments.
Appeal in Case No. 68419 is dismissed. The judgment in Case No. 68280 is reversed.
McMurray, C. J., Banke, P. J., Pope and Ben-ham, JJ., concur. Deen, P. J., Quillian, P. J., and Birdsong, J., dissent. Sognier, J., disqualified.
Dissenting Opinion
dissenting.
By invоking the concept of “inherent” power, the majority opin*442ion is attempting to accomplish and sanction indirectly that which, by statutory prohibition, cannot be done directly.
The writer sought to distinguish “inherent” power from “implied” power in Echols v. DeKalb County, 146 Ga. App. 560 (247 SE2d 114) (1978). “The federal judiciary has implied power but not inherent power.” Id. at 567. The former “power” seems to be a more restricted and definable exercise of discretion, while the latter “power” implies an unlimited, autonomous, absolute expression of sovereign authority.
I concur with the majority opinion as tо the existence of implied power to procure additional prosecutorial aid in the trial of a particular criminal case. Hannah v. State, 212 Ga. 313 (92 SE2d 89) (1956). However, Judge Birdsong’s dissent is convincing in its outline of the restrictions of
Dissenting Opinion
dissenting.
The Prosecuting Attorneys’ Council (Council) was formed to be of assistance to the prosecutors of the courts throughout the various state jurisdictions. The statute creating the Council establishes parameters fоr the exercise of those supportive duties by that Council. The clear language of and limitations inherent in those parameters force me reluctantly to enter my dissent to the well-reasoned opinion of my esteemed brothers.
In substance, the linchpin of the majority’s decision is that the members of the Council lawfully may act as special prosecutors in a specified, single jurisdiction because as. individuals, the four members of the Council are not acting as a part of or on behalf of the Council as such and further that the four Council mеmbers are acting as surrogates for the district attorney and not in a personal capacity.
It is clear, however, that the two special prosecutors did not volunteer or seek leave of absence from the Council. They were requested by the Chatham County prosecutor from the Council to assist the county prosecutor in the investigation, compilation, and prosecution of a complex and difficult criminal case involving a member of the state judiciary. The four members of the Council were made available (i.e., consigned) by the Council for that express purpose, as the majority recognizes in its opinion.
While undoubtedly it is true that the Council is not on record as seeking affirmatively the prosecution and conviction of Judge Cook, it stretches the common meaning of words to say that the Council did not act when it made available at the request of a district attorney four of its nine members. Withоut the Council’s acquiescence, the special prosecutors could not have responded to the call for help. It seems to beg the question to argue semantically that short of the Council directing the prosecution, it has not acted in its official capacity. Moreover, a conclusion that the four special prosecutors are under the control and thus acting through the Council is supported by the fact that the four members of the Council continued to receive their remuneration from state funds through the aegis of the state-created Council and apparently are still subject to assignment or reassignment by the Council.
The only part of the enabling statute pertaining to the Council which could include these supporting functions would be that authorizing the Council to provide other “lawful assistance.” In my opinion, the assignment by the Council of its membership to perform duties on behalf of a requesting prosecutor of duties exclusively within the realm of a district attorney violates the proscription of the statute creating the Council prohibiting such activities.
I respectfully dissent. I am authorized to state that Presiding Judge Deen and Presiding Judge Quillian join in this dissent.