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January 11, 2019

Are there constitutional (and ethical) issues raised by allowing the family of murder victims to hire lawyers to assist prosecutors as "associate attorneys" in capital prosecution?

The question in the title of this post is prompted by this very interesting local article from Kansas headlined "Despite doubts, judge allows private prosecutors in case of two slain deputies."  Here is the story, with one particular line emphasized:

Over the objections of defense lawyers, and despite his own misgivings, a Wyandotte County judge said Wednesday he must allow private attorneys to assist in the prosecution of a man charged with killing two sheriff’s deputies.

Antoine Fielder, 30, is charged with capital murder in the fatal shooting last June of Wyandotte County deputies Theresa King and Patrick Rohrer as they were escorting him back to jail after a court hearing in a robbery case.

Under Kansas law, crime victims can pay for lawyers to assist prosecutors as “associate attorneys,” and the families of Rohrer and King have hired married law partners Tom Bath and Tricia Bath.

Because Fielder faces a possible death sentence, he is being represented by attorneys from the Kansas Death Penalty Defense Unit, who objected to what they termed “interference” in the case.

They argued that the Kansas law that allows the hiring of private attorneys to assist in criminal prosecutions has never been used in a death penalty case. They said it raises “novel constitutional, statutory and ethical issues.”

“Counsel for Mr. Fielder is not aware of any direct authority addressing the constitutionality of private prosecutions in obtaining sentences of death,” the defense said in court documents.

In their written response to the defense objections, the Baths noted that the Kansas Supreme Court has upheld the idea of crime victims hiring private attorneys in numerous cases. And while it has never been used in a capital case, there is nothing in the law that excludes it.

At a court hearing Wednesday, defense attorney Jeff Dazey noted that the law has been on the books in Kansas since the early 20th century, “long before the modern era of the death penalty.”

A spokesman for Wyandotte County District Attorney Mark Dupree said he had met with the Baths before they entered the case and had no objection to their participation.

At Wednesday’s hearing, Tricia Bath said they would be operating under the direction of Dupree’s office. She noted that both she and Tom Bath have represented defendants in death penalty cases and are familiar with the rules and ethical requirements for attorneys in death penalty cases.  “The law is clear,” she argued. “We get to be here and the victims get to have an official representative here.”

District Judge Bill Klapper said that, while he finds the inclusion of private associate prosecutors in the case “inherently problematic,” he is bound by Kansas law that mandates they “shall” be allowed. The judge did order that the Baths will not have any role in the case until after the Feb. 1 preliminary hearing.

The constitutionality of victims have a say and a role in various criminal justice proceedings is well established, and I am generally supportive of victim's being allowed to retain a lawyer to help them preserve and exercise their rights in various ways. But one reason I support victim involvement in criminal prosecution is because, if they have independent rights in the process, they can and should often serve as another kind of check on the power of the state (by, for example, advocating for a sentence lower or just different than what prosecutors seek). But here it seems that the victims' lawyers are not going to be an independent voice and advocate for the victims, but rather will be "operating under the direction" of the District Attorney. That does not seem quite right, and arguably raises some unique constitutional and ethical concerns.

January 11, 2019 at 09:16 AM | Permalink


Doug, when I started practicing law in North Carolina it was common practice for victims families to hire "private prosecutors" to represent the State in criminal trials. They replaced, not assisted, the District Attorney's office. I thought it was a blatantly unconstitutional practice then, and still do now.


Posted by: bruce cunningham | Jan 12, 2019 6:45:11 AM

“But here it seems that the victims' lawyers are not going to be an independent voice and advocate for the victims, but rather will be "operating under the direction" of the District Attorney. That does not seem quite right, and arguably raises some unique constitutional and ethical concerns.“

Such as? Given that they are under the direction of, as opposed to independent of, the duly elected DA, basically it seems that they are free legal assistance to the assigned prosecutors. Not unlike the the various capital habeas units funded with tax dollars who assist other capital defense counsel or the myriad of anti DP non-profits that are churning out challenges to the DP.

I’m not saying there aren’t concerns, but no one has listed them here. If they are operating under the prosecutors, aren’t those prosecutors free to decline their advice, input or to advance any arguments made?

Posted by: David | Jan 12, 2019 12:43:49 PM

Our Judicial system and our Government is so corrupted by unethical attorneys, our courts say "tell the truth, whole truth and nothing but the truth" then say answer yes or no only. So who benefits?

The Missing 13th Amendment"TITLES OF NOBILITY" AND "HONOR": a 13th Amendment restricting lawyers from serving in government was ratified in 1819 and removed from our Constitution during the tumult of the Civil War. Since the Amendment was never lawfully repealed, it is still the Law today.

Attorney's changing one little word or definition can do a lot of harm and why do we need 2000 pages of anything when Congress admits they do not read them?

The Constitution is short and to the point - not filled with commercial rules, laws, and regulations. Read your Constitution, it's for the people.

Posted by: LC in Texas | Jan 12, 2019 1:12:47 PM

The main question and concerns that I have, David, relate to who these victim-hired attorneys represent. Wyandotte County District Attorney Mark Dupree was elected to represent the people of the county and he will make decisions in this case with the interests of the county in mind. But who do the lawyers hired by the family represent? Are they to zealously represent the interest of the families or the interest of the county?

What if the family says they just want this case resolved ASAP by a plea. Do the lawyers try to convince the DA to offer/accept a plea? Can and should the family lawyer start developing arguments to support a plea if the DA does not think a plea is in the best interest of the county? Conversely, what if the family objects to any possibility of a plea? Do they try to convince the DA never to offer/accept a plea?

So my main concern is uncertainty about whose interests the hired lawyer's serve, and also the way this extra help could sway the DA's decisionmaking. This situation seem distinct from just filing an amicus brief or providing help to the lawyers for a particular party, though maybe one might say this is merely a difference in degree rather than a real difference in kind. Ergo the question in the title of this post.

I am with you that any concerns may be ultimately diminished if the DA is going to be making all of the key decisions as the case moves forward. But especially if the DA has a busy docket and is inclined to defer to the wishes of the family lawyers, there still seems to be a risk of un-elected hired lawyers functionally exercising authority that the voters put in the hands of another.

Posted by: Doug B | Jan 12, 2019 5:39:05 PM

I follow a lot of wrongful conviction cases. It seems that in most such cases, the police and prosecution knew perfectly well that their case was BS, and they chose to proceed anyway, misleading the victim's family along with everyone else. So I think an attorney representing the victim's family could be beneficial, simply because an attorney will often be harder to mislead.

Posted by: William Jockusch | Jan 12, 2019 7:09:29 PM

Outside interests in significant cases attempt to talk the prosecution into particular courses of action all the time. This is nothing new. It’s impact on district attorney decision making is not likely to be any different although I suppose them being able to speak in court would be a bit different then being able to speak to us directly, or for higher profile cases, in the court of public opinion. Clearly, if the goals were at odds to each other, that would present obstacles to efficiency, but that is what the voters in Kansas apparently want.

As far as overworked prosecutors putting decisions in the hands of another, given the Kansas has expressly approved of this arrangement I don’t see how that is an improper “risk of un-elected hired lawyers functionally exercising authority that the voters put in the hands of another.” The fact is they put it in the hands of both.

I am still not seeing ethical conundrums and I’m definitely not seeing any constitutional arguments that this arrangement is improper. I will say as a 20 year career prosecutor I am not sure that I would find such an arrangement beneficial in the aggregate. The reason being that many times the lawyers representing the victims are interested in money, not deterrring the criminal, or consistency across cases. However, the money factor is not present in violent crimes the vast majority of the time. I also have found over the years that working with victims through lawyers is a layer of miscommunication that I prefer to avoid. There is a reason that hearsay is inadmissible in court, I prefer not to use hearsay to explain my actions.

Posted by: David | Jan 13, 2019 11:19:09 AM

Doug, very thoughtful comments and observations on your part.

Here is a question. Are District Attorneys in Kansas elected? If so, that strengthens the defense arguments that victims should not be able to hire private attorneys to "assist" in the prosecution of cases. DA would know if they do not adhere to what the private lawyer for the family of the victim tells them, there could be significant political consequences. If the family is sophisticated enough to hire their own lawyer, there is no telling what they would do if the DA doesn't follow their wishes.

I think this smells of a separation of powers, non-delegation of responsibility issue. The North Carolina Constitution says it is the responsibility of the District Attorneys to prosecute criminal actions. That power can't be delegated, overtly or implicitly, to private citizens, who are more interested in vengeance than justice.


Posted by: bruce cunningham | Jan 13, 2019 11:07:28 PM

Thoughtful comments all around, though I think David is convincing me not to worry too much about the victim-hired attorneys. And I suppose their first responsibility/assignment will be to develop a memo (or brief) to rebut claims by the defense that their involvement raises “novel constitutional, statutory and ethical issues.”

Posted by: Doug B. | Jan 14, 2019 3:32:03 PM

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