Under US law, is it posible to "force the hand" of a prosecutor?

This thread is inspired by the recent police killings in the USA, and the suspicion of some that prosecutors might be biased in favour of the police hence reluctant to prosecute.

In France, if a prosecutor declines to prosecute, the victim has the option to ask an “inquiring judge” to do so. If accepted, the prosecutor will be bypassed and the judge will start the enquiries. It typically will go nowhere, since generally a prosecutor has good reasons not to act, but it could be an useful tool if the victim is facing a biased prosecutor (as many people think is the case in these police killings).

There’s no equivalent to an enquiring judge in the common law system, but I was wondering if the victim of a crime could in some way “appeal” the decision of the prosecutor not to prosecute, for instance to the prosecutor’s boss or to a regular judge.

That’s possible in Germany too, for instance in this recent case:

http://www.thelocal.de/20141027/shooter-81-avoids-jail-for-killing-burglar-germany-sittensen

(This is, by the way, contemporary German law in action: You are not allowed to defend yourself using lethal force under any condition, even if you are 81 years old, frail and you are burglarized in your own home by 5 (five) young thugs who pistol-whip you).

Contrary to stereotypes Germany actually has a rather permissive self-defense law, as long as you are actually, you know, defending yourself. If you plan to shoot a fleeing minor in the back, then you better have a damn good reason though.

In general: no. At common law, there exists a “writ of mandamus,” which is intended to force a reluctant official to comply with a mandatory duty. But the initiation of a prosecution is discretionary.

This applies to anything outside the prosecutor’s office. Some states may have a mechanism in which a state-wide office such as the Attorney General has the power to independently prosecute, so obviously that would be a possibility. And if the decision is made by staff – say, an Assistant Commonwealth’s Attorney (as we call prosecutors here in Virginia) or an Assistant District Attorney (as they’re known in New York) then that decision certainly can be overruled by the actual elected Commonwealth’s Attorney or District Attorney; the assistants simply act in his name.

But assuming the boss prosecutor says, “No,” then I am not aware of any external judicial mechanism to force him to prosecute.

I don’t know anything about the case other than what appears in your link, but your summary is unfair. In that case, “under any condition,” isn’t a good summary at all. The five young thugs did indeed burglarize and (I’ll take your word for it) pistol-whip a frail 81 year old. But they fled after he got his hands on one of his guns, and as they were fleeing he shot one in the back.

It’s reasonable to assume that the courts in Germany treat this differently than a case in which he shot one to prevent an assault, as opposed to the actual fact of shooting while the assault had ended and the assailants were fleeing.

Of course, you may have other cases which do in fact show German law is as parsimonious as you claim with respect to self-defense. This one doesn’t.

Let me just say that I disagree with that statement.

It’s noteworthy, though, that in this trial both the defense and(!) the prosecutor called for an acquittal during their closing arguments. The panel of judges (there is no jury under German law), however, decided to convict the man.

Do Germany and France have Grand Juries?

I wonder if the mechanism is entirely different under common law; here, the prosecutor refers cases to the grand jury in order to determine if prosecution is worthwhile. So in high profile cases, the decision is essentially made by the grand jury, not by the prosecutor.

It sounds like there, the prosecutor makes the decision whether to prosecute, and there’s a secondary mechanism to prosecute even if the initial prosecutor declines.

From what I remember of this case, the 5 burglars were running away with the loot. The burglary victim, who was very scared and agitated at this point, fired his pistol in the general direction of the retreating burglars and more or less hit the teen by accident. Earlier, the burglars (who were wearing masks) had put a gun to the old man’s head, threatening to kill him if he didn’t reveal the combination to his safe. I’m actually not quite sure about the pistol whipping.

Getting back to the OP, Bricker, wouldn’t there be a separation of powers issue if a law tried to give the courts the power to overrule a prosecutor and direct that a prosecution be started?

The Canadian Supreme Court has made it very clear that it’s not the function of the courts to decide if a prosecution be instituted, because that would damage their appearance of impartiality once the case came before them: the court would be on record as saying that there was merit in the prosecution.

In France, the job of deciding whether there’s enough evidences to send a case to trial (what the grand jury does in the USA, as far as I understand) belongs to a panel of judges (previosuly called “accusation chamber”, I’m pretty sure the name was changed recently because it sounded too ominous). It’s often stated that they tend to just rubberstamp any indictment (maybe not up to the proverbial ham sandwich, though).

There are no juries and no grand juries in Germany. The decision to prosecute or not to prosecute is entirely up to the district attorney’s office. There is, however, a category of crimes in which the victim of the crime can take the initiative (section 374 of the German Code of Criminal Procedure). This is called “private prosecution”. This is rare, though.

When charges are filed, the judge (or the panel of judges) can decide to dismiss the case immediately without trial. As far as I know, this is extremely rare.

That’s correct. The prosecutor (and the penal system) is an arm if the Executive Branch, which has the sole power to execute and enforce the laws of the land.

The Judicial branch has no power to allege that a law has been violated. Rather, it serves to determine (in a criminal case) if the Executive met it’s burden of proof against the citizen. I believe in France/Germany there’s no notion that the judge is an impartial arbiter but rather works hand in hand with the prosecutor (this is what I remember from law school so please correct me if I’ve stated it incorrectly).

In general the US system has checks against over-prosecution (including the grand jury and jury-trial systems plus the concepts of burden-of-proof-is-on-the accuser and innocent-until-proven-guilty) but no checks against under-prosecution.

I don’t know about US law, but it’s certainly not strictly true in all common law systems that there is no recourse for a victim if a prosecutor decides not to prosecute. For example in England, as the decision to prosecute is an administrative one, there’s the option to apply for judicial review and I know of at least one instance when a prosecutors decision not to prosecute has been reversed.

See for more details (note the case law contains two cases where the CPS declined to prosecute police officers which were reviewed):

http://www.cps.gov.uk/legal/a_to_c/appeals_judicial_review_of_prosecution_decisions/

Of course there is also the option of bypassing the prosecuting agencies completely (if they have declined to prosecute) and bringing a private prosecution.

How would it raise a separation of powers issue? It is the excersize of power given under law. In other words at common law a prime candidate for Judicial Review

Well, the job of a French prosecutor is quite similar to that of his American counterpart for minor crimes, but completely different for major crimes like homicides. Basically, he starts the process : “There are reasons to believe there has been a murder”, and then the job is handed over to an enquiring judge, who enquires impartially (for instance seeking evidences of innocence as much as of guilt).

Until the trial the job of the prosecutor is only to represent the interests of society to the enquiring judge in the same way a lawyer will represent the interest of the accused (say, requesting specific enquiries, or arguing that the accused should be detained, asuming that the prosecutor supports the accusation, which he might not).

And importantly there are two categories of judges : the enquiring judges’ job ends when the case goes to trial, and the trial is presided over by “sitting judges”.
But anyway, regarding my OP, the prosecutor still starts everything so in theory he could prevent an enquiry.

Could something be done if the prosecutor was more than just biased? For instance, let’s assume he’s the brother in law of the local mafia godfather and doesn’t prosecute even the most egrerious crimes.
Something else : does double jeopardy attach to the grand jury decision, or only to the actual trial? Could the discovery of new evidences lead to a second attempt at indicting the alleged culprit?

Private Prosecution is allowed in many, but not all US States subject to strict limitations. I don’t know if there are any states where the Private Prosecution can initiate prosecution if the state chooses not to. I know in Virginia they can aid in prosecution but can not initiate it.

So would that be something like a writ of mandamus to prosecute?

In Missouri, the prosecuting attorney is an elected office, so they have to stand for reelection. In some states elected officials can be recalled and I think impreachment is an option everywhere.

In fact no because it actually compels the decision to be reviewed by the prosecuting agency rather than for them to prosecute. Like I said though this has resulted in decisions being reversed.

410 US 614

a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another