Opinion
I.D. No. 0102014259
Submitted: January 10, 2003
Decided: January 14, 2003
James J. Kriner, Esquire
Sandra W. Dean, Esquire
On Defendant's Motion for Court Order Concerning Assignment of Prosecutor
Dear Counsel:
Before this Court is Defendant's motion for reassignment of prosecutor. Upon consideration of the motion and the oral arguments presented, it appears to this Court that Defendant's motion should be denied.
I. Background
Following a jury trial, Defendant Roland Williams was found guilty of delivering cocaine. Subsequently, Defendant's conviction was reversed and remanded by the Supreme Court because of inappropriate remarks by the Prosecutor during closing. Specifically, the Supreme Court concluded that "the prosecutor's remarks characterizing the defendant in this case as `lying' and proposing that the jury must find the State's witnesses to be lying in order to acquit the defendant, were so patently improper that the trial judge should have intervened sua sponte to issue a curative instruction or enter a mistrial." Upon remand, Defendant has filed numerous motions including the motion to reassign the prosecutor, which is the subject of this Order.
Williams v. State, 803 A.2d 927, 931 (Del. 2002).
Id. at 927.
II. Analysis
Under Title 29 of the Delaware Code, Section 2503, whenever Attorney General is referred to in the Constitution, in any statute, rules of any Court, or document "such reference or designation shall include any person duly appointed by the Attorney General." Furthermore, § 2504(6) states that the Attorney General shall have charge over all proceedings. Therefore, it seems apparent that the Attorney General or her designee shall have the power to decide which prosecutor to appoint to handle each criminal case. This power should not be disrupted absent a specific and tangible cause.
DEL. CODE. ANN. tit. 29, § 2501 (1997).
Id. at § 2504.
The prosecutor in any given case has responsibilities and duties that should not be taken lightly. According to the ABA Standards for Criminal Justice § 1.1(c) "The duty of the prosecutor is to seek justice, not merely to convict." According to the commentary of § 1.1:
The prosecutor stands at the most critical point in the criminal justice system. All serious criminal cases require the participation of three entities: a judge, counsel for the prosecution and counsel for the accused, and absent any one (barring valid waiver of counsel) the court is incomplete. In short, a "court" must be viewed as a structure with three legs which requires the support of all three. Although the prosecutor operates within the adversary system, it is fundamental that his obligation is to protect the innocent as well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of the public.
ABA Standards for Criminal Justice, The Prosecution Function and The Defense Function, The Prosecution Function § 1.1(c) (1971).
Furthermore, "the legal profession must develop a new and acute awareness of the importance of a vigorous, fair, and efficient prosecution system," because the "character, quality and efficiency of the whole system is shaped in great measure by the manner in which [the prosecutor] exercises his broad discretionary powers." In addition, ABA Standard for Criminal Justice § 5.8 specifically deals with a prosecutor's conduct when arguing before a jury stating; "It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant."
Commentary for ABA Standards for Criminal Justice § 1.1 at 44-45.
ABA Standards for Criminal Justice, The Prosecution Function and The Defense Function, The Prosecution Function § 5.8.
It is under this backdrop that this Court turns now to the Defendant's motion. Defense counsel argues that "when a conviction is reversed due to prosecutorial error, the case should be assigned to a different Prosecutor for the re-trial. This should not reflect adversely on the original Prosecutor, but should be done simply to avoid the appearance or possibility of unfairness." The defense does not provide any support for this proposition nor does she cite any specific reasons, other than the reversal in the Supreme Court, which would indicate that the assigned Prosecutor would conduct the trial in an unfair manner. Defense counsel relies solely on the perception of unfairness. While this is a valid issue, it does not provide this Court with any tangible grounds to invade the province of the Attorney General's office and demand a new prosecutor be assigned to this case, and may set a dangerous precedent.
Defendant's Motion For the Court Concerning Assignment of Prosecutor.
After a review by this Court, there does not seem to be any case law in Delaware that specifically addresses this issue.
Defense Counsel does incorporate into her Motion a letter that she wrote to the Attorney General's office in which she expresses concern that she had not been offered a plea by the assigned counsel. However, since the decision of whether to offer any plea agreement is within the sole discretion of the Attorney General's office this Court will not express an opinion as to the appropriateness of a plea offer in this case. However, for clarity this Court will mention that the assigned Prosecutor did offer a plea to the defendant before the first trial that was rejected, and according to defense counsel's letter that plea offer is similar to the offer defense counsel is currently seeking.
Moreover, assigning this case to a new prosecutor would inevitably cause a delay in the case, as this case is currently scheduled for retrial on January 21st which is approximately a week away. Additionally, nothing in the Supreme Court's opinion demands that the case be reassigned to a different prosecutor. Surely, if the Supreme Court had desired for this case to be reassigned it could have done so in its opinion.
For example, the Supreme Court has routinely remanded cases with the instruction that the case be assigned to a different trial judge. See, e.g., Eberly v. Eberly, 489 A.2d 433 (Del. 1985) (remanding with instructions that the matter be reassigned to another Judge); H. v. H., 456 A.2d 1233 (Del. 1983) (stating that "the Chief Judge will direct reassignment of this case on the remand").
III. Conclusion
Therefore, since defense counsel has not pointed to any real conflict or bias of the assigned prosecutor, and to efficiently move this case to a resolution, the motion for reassignment of prosecutor is denied. However, the Prosecutor should be on notice that, in accordance with the Supreme Court's Opinion, this Court will take seriously any inappropriate comments or actions on the part of the prosecution in this or any other criminal case before this Court, and will take appropriate action if necessary.
IT IS SO ORDERED.