View single post by Joe Kelley
 Posted: Wed Oct 3rd, 2018 11:57 pm
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Joe Kelley


Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6398
While all lawyers are governed by legal and ethical rules, prosecutors are subject to more stringent obligations.3 Unlike the private lawyer or defense attorney whose obligation is to be a zealous advocate on behalf of his client, the prosecutor is entrusted with the duty to "seek justice" in addition to fulfilling her role as an advocate.

The prosecutor has this duty to seek justice because she is a representative, not of a single individual, but of the government and society as a whole.

As the representative of a sovereign, the prosecutor enjoys powers that other lawyers do not. For example, prosecutors have broad discretion in deciding whom to prosecute and what charges to bring. In addition, prosecutors have the benefit of a police force that investigates their cases and gathers evidence for them.3 This broad access puts defendants at a great disadvantage in preparing their cases. In the adversary system in which the prosecutor operates, the availability of these powers leads to great inequity between the prosecution and the defense in a criminal trial.

Prosecutor's Duty to Disclose Exculpatory Evidence Lisa M. Kurcias

What is the meaning of the warning by Richard Henry Lee concerning courts that will admit the ficion? Is it not this, whereby the original concept of eqaul protection of the law, or equal footing of people in the eyes of the law, or the blind justice, impartiality, fairness, and individual rights, were taken by an oppressive gang of criminals, lead by a Monarch, claiming hereditary sovereign power to dictate what is or is not law, and then the Revolutionary idea to return back to an equal footing, free people, in liberty, where each individual is as protected by the law as each other, and each individual has equal protection under the law, which is to say that each individual has access to the same law as everyone else.

Case in point:

"Originally the writ of mandamus was purely a prerogative remedy, and to this day it preserves in England some of its prerogative features. It was called a prerogative writ from the fact that it proceeded from the king himself, in his court of king's bench, superintending the police and preserving the peace of the realm, and it was granted where one was entitled to an office or function, and there was no other remedy. Blackstone terms it a "high prerogative writ, of a most extensively remedial nature," and it is uniformly referred to in the earlier cases as a prerogative remedy, and is spoken of as one of the flowers of the king's bench. In this country, however, a mandamus can not in any strict sense be termed a prerogative writ, and much confusion of ideas has resulted from the efforts of many of the courts to attach prerogative features to the remedy, as used in the United States. This confusion has resulted chiefly from a failure to properly discriminate between the English and American systems. Under the English constitution, the king is the fountain and source of justice, and when the law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary judicial powers of the courts, and the mandamus was issued in the king's name, and by the court of king's bench only, as having a general supervisory power over all inferior jurisdictions and officers. Originally, too, the king sat in his own court in person and aided in the administration of justice; and although he has long since ceased to sit there in person, yet b a fiction of law he is still so far presumed to be present as to enable the court to exercise its prerogative powers in the name and by the authority of the sovereign. And the fact that a mandamus was formerly allowed only in cases affecting the sovereign, or the interests of the public at large, lent additional weight to the prerogative theory of the writ. These suggestions are believed to sufficiently explain the statements so frequently met in the reports, that the writ of mandamus is a prerogative writ, issuing not of strict right, but at the will of the sovereign and as an attribute of sovereignty.

"As confined to the English system, and to the jurisdiction of the court of king's bench, these statements may be accepted as correct. But even in that country there seems to be a growing tendency to divest the writ of its prerogative features, and to treat it in the nature of a writ of right.

"In the United States, from the nature of our system of government, the writ has necessarily been stripped of its prerogative features. Indeed, it is difficult to perceive how a mandamus can in any sense be deemed a prerogative writ in this country, unless the power of granting it were confined to one particular court in each state, or to a particular federal court, whose general functions should correspond to those of the court of king's bench, and which should represent the sovereignty of the country in the same sense in which it was represented in England by the king's bench. And the better considered doctrine now is, that the writ has, in the United States, lost its prerogative aspect, and that it is to be regarded much in the nature of an ordinary action between parties, and as a writ of right to the extent to which the party aggrieved shows himself entitled to this particular species of relief. In other words, it is regarded as in the nature of an action by the person in whose favor the writ is granted, for the enforcement of a right in cases where the law affords him no other adequate means of redress. And a judgment in a mandamus proceeding, as in case of an ordinary action at law, is subject to review by writ of error or appeal upon like conditions as in other cases.

"Under the American system the writ having, as we have thus seen, been stripped of its prerogative features, it has necessarily lost some of the characteristics which formerly distinguished it as an extraordinary writ, and has been assimilated to the nature of an ordinary remedy. It is still, however, regarded as an extraordinary remedy in the sense that it is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to the party aggrieved, and where without its aid there would be a failure of justice. In this sense, its character as an extraordinary writ bears a striking resemblance to that of injunction, which is the principal extraordinary remedy of courts of equity, and which is granted only when the usual and accustomed modes of redress are unavailing. And it is to be constantly borne in mind in investigating the law of mandamus as it now prevails both in England and in the United States, that by treating the remedy as an extraordinary one, it is not to be understood that the writ is left to the arbitrary caprice of every court vested with the jurisdiction, or that its use is not governed by rules as fixed and principles as clearly defined as those which regulate any branch of our jurisprudence. On the contrary, it is believed that few branches of the law have been shaped into more symmetrical development, and few legal remedies are administered upon more clearly defined principles, that those which govern the courts in administering relief by the extraordinary aid of mandamus."

A treatise on Extraordinary Legal Remedies, embracing Mandamus, Quo Warranto and Prohibition by James L. High. 1896