The duty of the prosecutor is to see that justice is done.
Not just prosecute every case. The following is set forth in the New Jersey
Court Rules, Appendix 2, Part VII, Guidelines for Operation of Plea Agreements
in the Municipal Court of New Jersey, Gann Edition page 1999, Year 2000
Edition:
GUIDELINE 3. Prosecutor's Responsibilities. Nothing in these
Guidelines should be construed to affect in any way the prosecutor's discretion
in any case to move unilaterally for an amendment to the original charge or a
dismissal of the charges pending against a defendant if the prosecutor
determines and represents on the record the reasons in support of the motion.
(Adopted October 6, 1997, to be effective February 1, 1998.)
NJ Court Rules, Year 2000 Edition Gann, p. 1909.
Moreover, Judge Pressler in the comments for Part VII,
Appendix writes: Plea agreements are to be distinguished from the discretion of
a prosecutor to charge or unilaterally move to dismiss, amend or otherwise
dispose of a matter. It is recognized that it is not the municipal prosecutor's
function merely to seek convictions in all cases. The prosecutor is not an
ordinary advocate. Rather, the prosecutor has an obligation to defendants, the
State and the public to see that justice is done and truth is revealed in each
individual case. The goal should be to achieve individual justice in individual
cases. In discharging the diverse responsibilities of that office, a prosecutor
must have some latitude to exercise the prosecutorial discretion demanded of
that position. It is well established, for example, that a prosecutor should
not prosecute when the evidence does not support the State's charges. Further,
the prosecutor should have the ability to amend the charges to conform to the
proofs.
Recently in State v. Hawk, _______ NJ Super ___________,
(App. Div. 2000) A-2784-98T5; the court held:
"A prosecutor holds a unique position in the legal
community in that her primary duty is not to obtain convictions, "but to
see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987).
Consequently, while a prosecutor must advocate a position vigorously, there are
boundaries to such conduct."
A private prosecutor is not permitted, unless a detailed
attorney certification is submitted and rules upon first by the Court R
7:8-7(b). State v. Storm, 278 NJ Super. 287 (App. Div. 1994), aff'd 141 NJ 245)
1995 prohibited private prosecutors unless there is no conflict and no
financial interest in the outcome.
The roles of the judge, prosecutor and defense attorney are
distinct. The attorneys are advocates for the respective sides, while the judge
is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336
(App. Div. 1995). The judge must remain impartial and detached and may not
"take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div.
1993). The trial judge possesses a broad discretion as to his or her
participation in the trial, but simultaneously must also maintain an atmosphere
of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). In DWI, criminal and
other serious cases, court administrators sometimes refuse to adjourn cases where
the State Police has failed to provide the mandatory discovery to the
Prosecutor. A defense attorney who has paid for, but not received discovery,
should not be forced by a court administrator to waste the attorney's time and
client's money by traveling to a court to ask for an adjournment which is the
fault of either the State Police or the Prosecutor. Defense attorneys should
not have to go through the additional cost and work of filing motions to compel
discovery.
Preparation of the State's case is clearly a prosecutorial
function and is a responsibility that cannot be shifted to others. Any attempt
by the prosecutor to place this function upon the clerk, who is an impartial
judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529
A.2d 1056 (Law Div. 1987).
MUNICIPAL COURTS ARE BARRED FROM HANDLING DISCOVERY REQUESTS
OR ASSISTING THE POLICE OR PROSECUTORS IN PREPARING THE STATE'S CASE.
Canon 1. A Judge Should Uphold the Integrity and
Independence of the Judiciary An independent and honorable judiciary is
indispensable to justice in our society. A judge should participate in
establishing, maintaining, and enforcing, and should personally observe, high
standards of conduct so that the integrity and independence of the judiciary may
be preserved. The provisions of this Code should be construed and applied to
further that objective. A court should not be "assisting" the
Prosecutor to prosecute people or helping the State prepare it's cases. The
integrity also is required of court administrators Canon 2. A Judge Should
Avoid Impropriety and the Appearance of Impropriety in All Activities
A. A judge should respect and comply with the law and should
act at all times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary. The court staff also cannot assist the
Prosecutor. It is the appearance of impropriety for the Court to handle
discovery.
Canon 3. A Judge Should Perform the Duties of Judicial
Office Impartially and Diligently
Court staff also must be impartial. They cannot be impartial
to help the police or prosecutor A municipal "prosecutor, like the
[municipal] judge, must be impartial." State v. Storm, 141 N.J. 245, 254
(1995). Because of the requirement of impartiality, the municipal judge is
prohibited from practicing criminal law. R. 1:15-1.
The roles of the judge, prosecutor and defense attorney are
distinct. The attorneys are advocates for the respective sides, while the judge
is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336
(App. Div. 1995). The judge must remain impartial and detached and may not
"take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div.
1993). The trial judge possesses a broad discretion as to his or her
participation in the trial, but simultaneously must also maintain an atmosphere
of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). See STATE OF NEW JERSEY v
TROY SWINT, __ NJ Super. ___ (App. Div. ) A-5131-97T3
Preparation of the State's case is clearly a prosecutorial
function Preparation of the State's case is clearly a prosecutorial function
and is a responsibility that cannot be shifted to others. Any attempt by the
prosecutor to place this function upon the clerk, who is an impartial judicial
officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056
(Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge
Haines discussed the municipal prosecutor's role in connection with discovery,
and added: There is further reason for requiring the prosecutor to be
responsible. In our court system, the prosecutor, contrary to an ordinary
advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J.
450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when
the evidence does not support the State's charges. Consequently, the prosecutor
has an obligation to defendants as well as the State and the public. Our
discovery rules implicate that obligation, an obligation which can be
discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474]
As set forth in State v Prickett; 240 NJ Super 139, 146
(App. Div 1990), it is the municipal prosecutor who selects the State's
witnesses, requests postponements for the State, complies with discovery rules,
requests dismissal if the State cannot make out a case, and does all else
necessary to prepare and present the State's cases in the municipal court. See
also Position 3.11, "The Role of the Prosecutor, Report of the Supreme
Court Task Force on the Improvement of Municipal Courts (1985)".
We have the problem of a part-time municipal prosecutor
responsible for preparing cases for trial who abandons a prosecutorial function
to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court
clerk may issue a subpoena, but makes no provision for service by the court
clerk nor does it give the clerk the authority to excuse any witness absent
instructions from the municipal court judge. The municipal court clerk should
not become involved in the preparation of the State's case. See N.J. Municipal
Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states: "The
municipal prosecutor has the responsibility for determining what witnesses he
wants and of preparing his own subpoenas. However, if the municipal prosecutor
lacks secretarial help, court personnel may assist in typing the
subpoenas." State v Prickett 240 NJ Super at 145. However, the court
should not ever act as the prosecutor's assistant. The court must be neutral.
Courts are never permitted to handle discovery requests ever. That would be a
violation of a defendant's right to an impartial court. Because the State is
the municipal prosecutor's client, a failure to discharge the obligations of
his office is a violation of a prosecutor's professional responsibility to
represent the client diligently. When a prosecutor has available relevant
evidence bearing on a prosecution, and the prosecutor's failure to present that
evidence in the course of trial results in acquittal, that prosecutor has not
diligently discharged his or her duty to prepare and present the State's case.
Furthermore, when the failure to prepare for trial and present relevant
evidence prejudices the State's case, the prosecutor's deviation from that duty
may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468
(1992)
