Michael T. Clifford
L.
Eugene Dickinson
Prosecuting Attorney
Public
Defender Corporation
Richard M. Riffe
Charleston,
West Virginia
Michele R. Duncan Bishop
Attorney
for the Appellee
Special Assistant Prosecuting Attorneys
Charleston, West Virginia
Attorneys for the Appellant
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE DAVIS, deeming herself disqualified, did not participate in
the decision of this case.
JUDGE HUTCHISON, sitting by temporary assignment.
2. The appointment by county prosecuting attorneys, pursuant to the provisions of West Virginia Code § 7-7-8 (1987) (Repl. Vol. 2003), of attorneys employed by the Workers' Compensation Commission to serve as assistant prosecutors for prosecution of workers' compensation fraud and abuse cases does not of itself violate due process principles.
Albright, Justice:
This action comes to us as an appeal and petition
for writ of prohibition filed by the State of West Virginia through the prosecuting
attorney of Kanawha County (hereinafter referred to as “the State”),
and involves the April 20, 2004, final order of the Circuit Court of Kanawha
County. In its April 20, 2004, order, the lower court found that a violation
of due process occurs when an attorney employed full-time by the West Virginia
Workers' Compensation Commission (hereinafter referred to as “WCC”)
prosecutes workers' compensation fraud cases by acting under the authority
of appointment as an assistant prosecuting attorney pursuant to the provisions
of West Virginia Code § 7-7-8 (1987) (Repl. Vol. 2003). (See
footnote 1) As a result of this ruling, the lower court
ordered dismissal, without prejudice, of the criminal indictment against the defendant below,
Myra Lea Angell (hereinafter referred to as “Ms. Angell”), and
disqualification of lawyers employed by WCC from further participation in
the prosecution of the case. After full consideration of the proffered arguments
in light of the relevant law, we issue a writ of prohibition, as moulded,
to cause the indictment to be reinstated and to permit WCC fraud unit lawyers
who have been properly appointed to act as assistant prosecuting attorneys
to proceed with the prosecution of the case.
Prosecutors serve in an often
forgotten quasi-judicial role. . . . This role necessarily requires the avoidance
of any actual or perceived conflict. In this case, the special assistant prosecuting
attorney wears two hats. He is the employee of the victim agency which requires
him to look out for the financial and other interests of the agency. Simultaneously,
he is a prosecutor charged with the public's interest and seeking justice. It
is not difficult to imagine numerous situations where the two roles may be in
conflict. While the assistant prosecuting attorney's intentions may be proper
in all respects, that is not the issue, and this Court makes no judgment relative
to the same. Although here, the assistant prosecuting attorney derives his status
from West Virginia Code § 7-7-8, that section cannot cloak a “special
assistant prosecuting attorney” whose salary is paid by the victim agency.
At the very least, this situation gives the appearance that the assistant has
a stake or interest in the outcome greater than that of insuring that justice
is done, and deprives the defendant of the very fundamental fairness and impartiality
that due process requires. Moreover, it detracts from the public's perception of and confidence in the process. Although
this Court recognizes the need for prosecutors with special expertise in
some areas of the law, prosecutors fill this need everyday by insuring that
assistants employed in their offices obtain the necessary training and experience
to prosecute various cases. Examples include domestic violence, sexual assault
and gun prosecutions.
The State thereafter appealed the dismissal of
the indictment based on the provisions of West Virginia Code § 58-5-30
(1998) (Supp. 2004). The State also sought to invoke the original jurisdiction (See
footnote 4) of this Court by filing a petition for a writ
of prohibition endeavoring to preclude the enforcement of that portion of
the April 20, 2004, order barring WCC lawyers from participating in such
prosecutions despite their appointment as assistant prosecuting attorneys
through the provisions of West Virginia Code § 7-7-8.
An indictment is bad or insufficient
for purposes of analysis under W.Va. Code 58-5-30 when within the four corners
of the indictment it: (1) fails to contain the elements of the offense to be
charged and sufficiently apprise the defendant of what he or she must be prepared
to meet; and (2) fails to contain sufficient accurate information to permit a
plea of former acquittal or conviction.
Id. at 41, 475 S.E.2d at 41 (citation omitted). In the case before
us, it is clear that the indictment was dismissed because the method of prosecution
was found to be an unconstitutional infringement of due process rights rather
than because of any deficiency pertaining to the substance of the indictment.
As a result, we find, as we did in Forbes, that the State has no right
pursuant to West Virginia Code § 58-5-30 to appeal the dismissal of
the indictment by the circuit court.
Although review of the judgment is not available to the State through the appeal process, in Forbes we discussed under what circumstances the State may use the alternative of a writ of prohibition for obtaining review of the dismissal of an indictment. We observed in Forbes:
If a trial court improperly interferes with a State's right to prosecute, the court, in effect, exceeds its jurisdiction. In State v. Lewis [188 W.Va. 85, 422 S.E.2d 807 (1992)], we stated in Syllabus Point 5 as follows:
“The
State may seek a writ of prohibition in this Court in a criminal case where
the trial court has exceeded or acted outside of its jurisdiction. Where the
State claims that the trial court abused its legitimate powers, the State must
demonstrate that the court's action was so flagrant that it was deprived of
its right to prosecute the case or deprived of a valid conviction. In any event,
the prohibition proceeding must offend neither the Double Jeopardy Clause nor
the defendant's right to a speedy trial. Furthermore, the application for a
writ of prohibition must be promptly presented.”
Syl. Pt. 2, Forbes, 197 W.Va. at 42, 475 S.E.2d at 42, syl. pt. 2. While
the State in the present case is not entirely deprived of its right to prosecute
because the indictment was dismissed without prejudice, the decision reached
by the lower court directly serves to limit significantly the State's ability
to prosecute workers' compensation fraud cases. Given the gravity of the lower
court's ruling and the great possibility that the issue will continue to surface,
we find the issue one appropriate for consideration. Thus, we proceed under
authority of our original jurisdiction to examine the integrally related issues
of the indictment dismissal and the disqualification of the WCC employed lawyers
from further prosecutorial involvement to determine whether a writ of prohibition
should issue.
We are told by the State that the practice of WCC
attorneys prosecuting workers' compensation fraud cases by appointment of
county prosecuting attorneys and confirmation by county commissions began
in 1995. It was in that year that WCC created a unit specifically dedicated
to the deterrence of criminal fraud arising in the context of workers' compensation. (See
footnote 6) The lawyer hired and paid by WCC in that unit
was charged with supervising the investigation of fraud and abuse involving
the Workers Compensation Fund and seeking to prosecute the criminal activity
uncovered by the investigations. In order to facilitate the prosecution of these cases, WCC has entered into informal
agreements with county prosecuting attorneys whereby WCC attorneys are appointed,
with confirmation by the respective county commission, as assistant prosecuting
attorneys of a particular county, pursuant to the provisions of West Virginia
Code § 7-7-8. Under this arrangement, WCC attorneys answer to WCC for
administrative matters such as salary and leave while prosecutorial functions
are performed under the supervision of the elected prosecutor. The state
asserts that WCC does not intervene, directly or indirectly, with the prosecutorial
decisions with regard to the criminal cases in which WCC attorneys appointed
as assistant prosecutors are involved.
The lower court's examination of the method by
which WCC has sought criminal enforcement of fraud and abuse of the workers'
compensation system resulted in the court concluding that West Virginia Code § 7-7-8 cannot [serve to] cloak a “special assistant prosecuting
attorney” whose salary is paid by the victim agency. At the very least,
this situation gives the appearance that the assistant has a stake or interest
in the outcome greater than that of insuring that justice is done, and deprives
the defendant of the very fundamental fairness and impartiality that due process
requires.
Ms. Angell maintains that the lower court was correct in finding that due
process (See
footnote 7) is violated in all instances when an attorney
who is employed by the WCC, the victim of the crime, is permitted to be appointed as a “special” (See
footnote 8) assistant prosecuting attorney for the
purpose of prosecuting charges of fraud and abuse of the workers' compensation
system. (See
footnote 9) Ms. Angell's basic position is that no
one prosecuted following this convention can be considered to be receiving
fair and evenhanded treatment by her accusers in accord with the well-ensconced
principles of due process.
The State asserts that according to the general consensus of authority it is not improper for an agency attorney to simultaneously be employed by the agency and be appointed and act as an assistant prosecuting attorney. This consensus relates to federal court decisions involving appointment of special assistant United States attorneys for prosecution of specialized cases. The treatise, Prosecutorial Misconduct, summarizes the case law with regard to the dual employment of agency attorneys as special assistant federal prosecutors as follows:
Another recurring conflict of
interest concerns the permissibility of a staff attorney for a government agency
simultaneously appearing before a grand jury as a specially appointed prosecutor
to present evidence concerning matters which he investigated as an agency attorney.
The theory of conflict appears to be that since the agency's interest lies in
justifying its investigation and its referral for criminal prosecution, the agency
prosecutor is not as interested in safeguarding innocent citizens from unfounded
criminal accusations as in obtaining an indictment. In re Perlin, 589
F.2d 260, 58 A.L.R. Fed. 680 (7th Cir. 1978). It is also argued that this conflict
violates ethical standards requiring attorneys to avoid even the appearance
of impropriety. In re Grand Jury Subpoenas, 573 F.2d 936 (6th Cir. 1978).
Against this rationale is the practical argument that the agency attorney is
no different from any prosecutor who has an interest in seeing a criminal investigation
result in a successful prosecution. U.S. v. Dondich, 460 F. Supp. 849
(N.D. Cal. 1978). . . .
Courts generally have refused
to disqualify agency attorneys from appearing before a grand jury to prosecute
a matter which they previously investigated. U.S. v. Birdman, 602 F.2d
547 (3d Cir. 1979); In re Perlin, 589 F.2d 260 . . . (7th Cir. 1978); U.S.
v. Dondich, 460 F. Supp. 849 (N.D. Cal. 1978). But see In re Grand Jury
Subpoenas, 573 F.2d 936 (6th Cir. 1978) (disqualifying IRS attorney from
participating in grand jury proceedings). These courts recognize the need for
intra-agency cooperation in the enforcement of criminal laws, and the lack of
any inherent conflict in such dual employment status. Of course, an actual conflict
may require dismissal, as might occur when a prosecutor uses the criminal proceeding
primarily as a means to further his agency's civil investigation, See U.S.
v. LaSalle Nat. Bank, 437 U.S. 298, 98 S. Ct. 2357, 57 L. Ed. 2d 221 (1978); U.S.
v. Procter & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077
(1958), uses abusive or illegal investigatory techniques during his agency's
involvement in this matter, U.S. v. Dondich, 460 F. Supp. 849 (N.D. Cal. 1978),
disregards duties owed to the prosecutorial agency because of an excessive
allegiance to his own agency, U.S. v. Gold, 470 F. Supp. 1336 (N.D.
Ill. 1979) or exerts an undue influence over the grand jury because of his
high official agency position. U.S. v. Braniff Airways, Inc., 428
F. Supp. 579 (W.D. Tex. 1977). . . .
Bennett L. Gershman, Prosecutorial Misconduct § 2:51 (2d ed.)
(2004); see also 38A C.J.S. Grand Juries § 104 (1996);
63C. Am. Jur.2d Prosecuting Attorneys § 31(1997). In another
particularly relevant federal case, U.S. v. Heldt, 668 F.2d 1238 (D.C.
Cir. 1981), a defendant attempted to disqualify all members of a United State's
Attorney's Office on the basis that the office was one of the victims of
the crimes of illegal entry and theft of documents charged in the case. The
United States Court of Appeals for the District of Columbia observed in Heldt that “to
the extent that a 'victim' exists in such a crime, it is the United States
of America.” Id. at 1275. The court went on in Heldt to
find that no disqualifying interest existed on this basis because none of
the individual attorneys involved in the prosecution of the case had actually
been a victim of any of the charges in the indictment and none of the government
attorneys was shown to have any special emotional stake in the outcome of
the case.
As in Heldt, the WCC attorneys appointed
as assistant prosecuting attorneys have no general personal interest in the
outcome of the prosecution of workers' compensation fraud and abuse cases.
Although the agency is named as the victim in the indictment charging the workers' compensation offenses, the agency exists
to carry out the work of the State as authorized by the Legislature, which
expressly includes prosecuting instances of fraud and abuse of the workers'
compensation system. Thus such offenses are crimes against the state of West
Virginia rather than any particular employee or person.
Although the process of appointment is not the
same as that in the federal system, we do not see that the due process rights
of criminal defendants are abrogated by the appointment method prescribed
by the Legislature through the provisions of West Virginia Code § 7-7-8.
Through these provisions the Legislature has granted county prosecuting attorneys
broad discretion in selecting their assistants, subject to the advice and
consent of the county commission. Assistant prosecuting attorneys act on
behalf of the public interest in the same manner as the elected prosecutor,
taking the same oath as the elected prosecutor and are subject to removal
from the position of assistant for the same reasons as the prosecutor. The
appointment of WCC attorneys for the prosecution of workers' compensation
fraud and abuse cases follows the common practice, recognized by the lower
court, of local prosecutors appointing assistants not only to prosecute crimes
in general but also for appointing assistants who have special expertise
in a particular field to prosecute specific types of crime. As with all appointees,
WCC attorneys acting in the capacity of assistant prosecutors are subject
to the supervision, direction and control of the county prosecutor and are
held to the same standards as all prosecutors, including effectuating the primary prosecutorial responsibility of seeking justice _ a responsibility
that implicitly carries the affirmative duty to treat an accused fairly. See Syl.
Pt. 2, State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974) (holding
that prosecuting attorney owes affirmative duty of fairness to accused).
It is within the discretion of the elected prosecutor to select the individuals
with the necessary skills to address the unique needs of the county and who
can meet the heightened standards required of prosecutors. Absent some particularized
showing of bias, personal interest which hampers objectivity and impartiality
or other basis for disqualification, (See
footnote 10) we find no inherent unfairness rising to the
level of a violation of due process when attorneys who are employed by WCC
are appointed as assistant prosecuting attorneys. Accordingly, we hold that
the appointment by county prosecuting attorneys, pursuant to the provisions
of West Virginia Code § 7-7-8, of attorneys employed by WCC to serve
as assistant prosecutors for prosecution of workers' compensation fraud and
abuse cases does not of itself violate due process principles. As a result,
the lower court's order dismissing the indictment and disqualifying further participation of the
WCC lawyers appointed as assistant prosecutors must be set aside.
Despite our conclusion that the appointment process
does not violate due process, we remain concerned that proper safeguards
are not in place within WCC to ward against the type of improper exchanges
of information which the federal courts have identified in such dual employment
cases. The State represented during oral argument that the WCC attorneys
who are appointed as assistant prosecutors to prosecute workers' compensation
fraud and abuse cases are not involved with the civil investigation process
of the agency. However, we were also informed that this practice is not a
formalized policy of the agency. To clearly convey the separation of these
functions and avoid impermissible exchanges of information or the appearance
that these exchanges are possible, WCC should take the necessary steps to
establish a written policy by memorandum or procedural rule applicable generally
to all employees. The policy should at least state that the agency yields
its authority to the prosecutor regarding any prosecutorial decisions and
that any WCC employees appointed as prosecuting attorneys are not to be involved
with the civil collection functions of the agency. Likewise, WCC should maintain
a uniform written protocol outlining the restrictions and expectations concerning
the relationship between the WCC employed assistant prosecuting attorney,
WCC, and the appointing county prosecuting attorney. The protocol should
at least state that WCC will not directly, or even indirectly, interfere with the decisions of the elected prosecuting attorney regarding
prosecutorial duties during the course of the appointment of a WCC attorney
as an assistant prosecuting attorney.
We find no violation of due process in the instant
case since we have not been presented with grounds to believe that the WCC
fraud unit lawyers appointed as assistant prosecutors have an inherent bias
or personal stake in the outcome of the case or have otherwise abused their
position as assistant prosecuting attorneys. Ms. Angell, as well as other
similarly situated defendants who have reason to challenge the motivation
or actions of individual WCC attorneys, may assert their right to due process
by timely application for relief through the courts for disqualification
or other appropriate remedy. Presented with such a challenge, the trial court
should schedule an evidentiary hearing to determine whether disqualification
is required.
The
county clerk, circuit clerk, joint clerk of the county commission and circuit
court, if any, sheriff, county assessor and prosecuting attorney, by and with
the advice and consent of the county commission, may appoint and employ, to
assist them in the discharge of their official duties for and during their
respective terms of office, assistants, deputies and employees.
The parties agree that Richard Riffe in his capacity
as a special assistant prosecuting attorney for Kanawha County appeared in
the grand jury room and presented the evidence to the grand jury which resulted
in the indictment in this case.
Mr. Riffe is a WCC fraud unit lawyer whose salary is paid by WCC.
“[p]rosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question. Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987).” Syl. Pt. 2, State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003).