State v. Orth , 178 W. Va. 303 ( 1987 )

BROTHERTON, Justice,

concurring:

I concur with the views expressed by the majority, but write separately to discuss further the informal restitution arrangement between the assistant prosecutor and Orth. The assistant prosecutor’s failure to proceed with the prosecution against Orth was improper.

While a prosecutor is vested with discretion in the control of criminal cases, “a prosecutor may abuse his or her discretion by an unreasonable failure to prosecute.” State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409, 416 n. 2 (1984); see State ex rel. Skinner v. Dostert, 166 W.Va. 752, 278 S.E.2d 624, 631 (1981). “With respect to the determination of whether to seek an indictment, the ultimate criterion must be whether, in the prosecutor’s professional judgment, it appears from the evidence that there is probable cause to believe an offense has been committed and that the defendant has committed it.” Hamstead, 173 W.Va. at 138-39, 313 S.E.2d at 415; see West Virginia Code of Professional Responsibility DR 7-103(A) (1987).¹ Once, however, the prosecutor has made a determination that criminal charges are supported by probable cause, the duty to seek an indictment becomes mandatory and falls outside the scope of a prosecutor’s discretionary duties. See Hamstead, 173 W.Va. at 139, 313 S.E.2d at 415. Once, therefore, the assistant prosecutor had probable cause to believe that a crime had been committed against Wheeling Downs and that Orth had committed the crime, the assistant prosecutor had a mandatory duty to seek an indictment against Orth.

Moreover, W.Va.Code § 62-2-25 (1984) prohibits, absent court approval, prosecuto-rial interference with the issuance of indictments and presentments.² The assistant prosecutor’s arrangement with Orth to forestall presentment of the bad check warrants to the grand jury, so long as Orth made restitution to Wheeling Downs, cannot be disguised as some sort of plea bargaining agreement. The restitution arrangement, in fact, constituted debt collection by a government official for a private party and borders on malfeasance in office.

1 . West Virginia Code of Professional Responsibility DR 7-103(A) provides:

A public prosecutor or other governmént lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.

2 . West Virginia Code § 62-2-25 (1984) provides:

If any prosecuting attorney shall compromise or suppress any indictment or presentment without the consent of the court entered of record, he shall be deemed guilty of malfeasance in office, and may be removed therefrom in the mode prescribed by law.