Cleckley, Justice, concurring:
I concur with the majority that the unsigned indictment
was not fatally flawed and that the writ of prohibition should be
denied in this case. However, I believe a different approach is
necessary to prevent this problem from recurring. Although I
reach the same result, in order to provide some additional
appellate guidance for future cases, I expand on the majority's
holding. The majority holds "the attestation of the prosecuting
attorney to the grand jury foreperson's signature is not required"
in cases "where a grand jury returns an indictment based on a
citizen's complaint and presentation[.]" Syllabus Point 2, in
Instead of holding that the prosecuting attorney's
attestation is not needed in this case, I believe a better
approach, and one consistent with West Virginia precedent, is to
rely on our prior cases
(See footnote 1)
holding that such attestation must appear
on the indictment pursuant to W. Va. Code, 62-9-1 (1931), and to
order the prosecuting attorney to sign the indictment.
"The prosecuting attorney is the constitutional officer
charged with the responsibility of instituting prosecutions and
securing convictions on behalf of the State of those who violate
the criminal law. W. Va. Const. art. 9, § 1; W. Va. Code § 7-4-1
." State ex rel. Skinner v. Dostert, 166 W. Va. 743, 750,
278 S.E.2d 624, 630 (1981). Certainly, the prosecuting attorney is
vested with certain discretion,
(See footnote 2) as we stated in Skinner:
"The prosecuting attorney, in his sound discretion, may refrain from prosecuting a cause or, having commenced a prosecution, may move the dismissal of a cause, when in good faith and without corrupt motivation or influence, he thinks that the guilt of the accused is doubtful or not capable of adequate proof. See generally, Annot., 155 A.L.R. 10; 63 Am.Jur.2d, Prosecuting Attorneys § 26 (1972)." 166 W. Va. at 752, 278 S.E.2d at 631.
Nonetheless, the prosecuting attorney does not command
unbridled discretion. In State ex rel. Ginsberg v. Naum, 173
W. Va. 510, 512, 318 S.E.2d 454, 455-56 (1984), we state:
"Prosecutors are charged with the duty to prosecute all violators of state criminal laws in their counties. W. Va. Code, 7-4-1 states:
"'It shall be the duty of the prosecuting attorney to attend to the criminal business of the State in the county in which he is elected and qualified, and when he has information of the violation of any penal law committed within such county, he shall institute and prosecute all necessary and proper proceedings against the offender. (Emphasis supplied.)'
'Shall' is mandatory and makes it a prosecutor's non-discretionary duty to institute proceedings against persons when he has information giving him probable cause to believe that any penal law has been violated." (See footnote 3) (Emphasis in original; citations noted (See footnote 4) ).
Based on the foregoing principles, the prosecuting
attorney lacked discretion to refuse to attest to the authenticity
of the indictment charging the defendant with sexual assault, after
it was returned by a grand jury which found probable cause. The
prosecuting attorney has a "nondiscretionary duty to act upon this
probable cause[.]" State ex rel. Hamstead v. Dostert, 173 W. Va.
133, 139, 313 S.E.2d 409, 415 (1984). Therefore, the circuit court
should have ordered the prosecuting attorney to sign the indictment to attest to its authenticity.
(See footnote 5) I do not believe that the
prosecuting attorney should be able to nol pros (nolle prosequi)
simply by refusing to sign the grand jury's indictment. The
concurring opinion in United States v. Cox, 342 F.2d 167, 179 (5th
Cir.), cert denied 381 U.S. 935, 85 S. Ct. 1767, 14 L.Ed.2d 700
"The grand jury may be permitted to function in its traditional sphere, while at the same time enforcing the separation of powers doctrine as between the executive and judicial branches of the government. This can best be done, indeed, it is mandatory, by requiring the United States Attorney to assist the grand jury in preparing indictments which they wish to consider or return, and by requiring the United States Attorney to sign any indictment that is to be returned. Then, once the indictment is returned, the Attorney General or the United States Attorney can refuse to go forward."
I am persuaded by the above reasoning. The signature of
the prosecuting attorney, together with that of the grand jury's
foreperson is a formal effective initiation of a prosecution. The
indictment immediately triggers the right of a defendant to a
speedy trial, the right to counsel where it has not already
(See footnote 6) and the right to discovery under Rule 16 of the West
Virginia Rules of Criminal Procedure. Thus, a defendant is not
likely to be prejudiced by any further delay.
Accordingly, I would remand this case to the circuit court with these directions.
"It is axiomatic that all crimes cannot be prosecuted even if this were desirable. Realistically, there are not enough enforcement agencies to investigate and prosecute every criminal act that occurs. Moreover, some violations occur in circumstances in which there is no significant impact on the community or on any of its members. A prosecutor should adopt a 'first things first' policy, giving greatest attention to those areas of criminal activity that pose the most serious threat to the security and order of the community." ABA Standards for Criminal Justice Prosecution Function and Defense Function, Investigation for Prosecution Decision 73 (3rd ed. 1993).