The Hired-Gun Prosecutor

 Posted on May 10, 2008 in Uncategorized

Kelly Siegler, having left the Harris County DA's Office, will be working as a special prosecutor on a capital murder case in Wharton County.

My admittedly cursory legal research on the question hasn't revealed legal authority for anyone other than an assistant attorney general to assist in the prosecution of criminal cases, unless the district attorney is unable to perform his duties.

I suppose the supporting theory would be that the elected DA can hire whomever he wants to prosecute criminal cases, on whatever terms they agree to. So if Wharton County D.A. Josh McCown feels that he is outclassed by the defense team of Houston criminal-defense lawyer (and former HCCLA president) Stanley Schneider and Richmond criminal-defense lawyer Lee Cox, he can hire Kelly Siegler just to try the case on which they oppose him.

I don't think this is really a "special prosecutor" position - my reading of the law is that only a judge can appoint a special prosecutor, and only when the district attorney is unable to act - but it raises an interesting question about prosecution in the 21st century:

Could Kelly Siegler make a business of traveling from county to county prosecuting alleged evildoers?

Being a criminal-defense lawyer is in part being a businessman; I'm looking at this question not in terms of ethics or law, but only of business: could Kelly create a viable business plan based on private provision of prosecutorial services?

I anticipate two likely hurdles that will have to be overcome: ego and money.

The ego that will have to be overcome is not Kelly's, but that of the prosecutor in each case in which Kelly A would hope to be employed. District attorneys are not generally known for their humility. Indeed, humility would make it difficult for them to function. Most Texas prosecutors probably think that they could do as good a job prosecuting cases as Kelly Siegler. By all accounts, most of them would probably be wrong. It is unlikely, however, that they could easily be convinced of this. So they would have to be persuaded that having Kelly prosecute a case on their behalf was somehow in their best interest.

The money hurdle would arise only if Kelly wanted to get paid for her work. Married to a successful physician, Kelly might not be interested in this. If she doesn't, the needlessness of paying her may assuage the egos of the prosecutors whom she would be supplanting, overcoming both hurdles at once - they can persuade both their voters and themselves that hiring Kelly to try a difficult case is a wise fiscal decision.

Even if Kelly needs to get paid to prosecute, there might be a way for her to find work: patronage.

If a private citizen or group of private citizens found it important enough for a person to be well and thoroughly prosecuted, they might decide to hire Kelly to do the job. For example, the wealthy family of a murder victim might hire Kelly to seek vengeance on their behalf (except that she would be asking the jury for it on behalf of "the State") or police officers might take up a collection to hire tally to prosecute the person whom they believed to have killed one of their own.

With private backing, Kelly might overcome a small-county prosecutor's ego by explaining how, with her experienced help on that one big case, he can spend his time on his other cases; the DA can present the decision to his constituents not as an admission that he's not up to the job, but as a way to save them money.

Only the small details remain:

How to get the business? Word of mouth and the internet, of course. Put up a website and the press will do all of your advertising for you. Or cherry-pick your cases, finding newspaper accounts of crimes for which someone might be both able to and inclined to hire you, and sending business cards, Paladin style, to the likely customers.

How much to charge? Whatever the market will bear. Remember that this is a luxury product, not a necessity. How much is vengeance worth?

What if I lose? When you're selling vengeance, you'd better deliver. You're only as good as your last verdict, and if that last verdict had the accused smiling on the steps of the courthouse, then you're out of the vengeance business. For the hired-gun prosecutor, losing is not an option.

The idea of Kelly Siegler riding around Texas on a pale horse is an entertaining one. I've even thought of a slogan for her:

I get paid to make people afraid.