Should State Judges Be Allowed to Act as Prosecutors?
Thanks to an obscure Colorado law written when the West was wild, state judges also have a power traditionally reserved for prosecutors: They're allowed to determine whether a person should be charged as a criminal. The 19th-century law had been all but forgotten until recently, when two high-profile cases of rape and murder came up, causing a ruckus among lawyers who question the law's constitutionality, the Los Angeles Times reports. After all, a similar law was struck down decades ago in Wyoming. "A judge should have no business doing a prosecutor's job," says Iris Eytan, who represents Riley McMurdo, one of two men accused in the sexual assault of Julie Stene. Stene recently told the press that she was assaulted about eight years ago, after a high school graduation party, by McMurdo and Clyde Surrell, a former University of Colorado football player. Meanwhile, in Chaffee County a similar legal battle is taking place over Nancy Mason, whose death during a fishing trip has increasingly appeared suspicious to authorities who initially ruled her broken neck an accident. As Fox 31 reports, her husband, Dan Mason, is now the center of investigators' attention.
Comments
Submitted by ohwilleke (not verified) on Tue, 2009-08-04 11:09.
Not that unusual.
The notion under American law that a prosecutor can refrain from prosecuting a serious crime even when there is solid proof that it was committed and there are resources available to prosecute it, while receiving no assistance in exchange is an international anomoly and cuts against the idea of rule of law.
Special prosecutor appointments are also hardly unprecedented (Ken Starr anyone?), and the notion fit with the wider powers granted to grand juries to identify crimes in earlier eras. The U.S. Supreme Court still routinely appoints counsel where a case has merit and no non-conflicted lawyer (a famous old example was the Amistad case, but it is done several times a year).
There is nothing sacred about the separation of judicial and prosecutorial powers at the state level in this context. Judges routinely rule on the question of whether the prosecutor brought a case that shouldn't have been prosecuted (it is called a preliminary hearing). This is the natural flip side of the same decision and allows important cases to be prosecuted where there may be an undisclosed and improper basis for non-prosecution, without compromising prosecutor secrecy in charging decisions.
