A 25-year law enforcement veteran reacts to questionable City vote.
It is not the purview of any administrative branch of government to determine whether a citizen is prosecuted for the commission of a crime. At every level of government there is a designated entity that makes that decision. You have the Office of the United States Attorney General at the federal level. You have the Office of the State Attorney General at the state level. You have the Office of the District Attorney at the county level that decides on prosecution of felonious offenses committed within political subdivisions. And of course municipalities have various lower courts where misdemeanors are adjudicated.
In addition, you have a corresponding law enforcement agency that identifies, investigates and presents evidence to the various judicial agencies identified mentioned above. This is how it is decided who is prosecuted in the United States of America. If a person commits a felony against the city, your city leadership does not decide whether they are prosecuted or not. They may determine whether the city will file criminal charges. This is a very important distinction.
In cases where individuals, companies, or government entities are not inclined to file criminal charges the District Attorney still has the option to prosecute on the behalf of the state. However, every individual, company, or government entity has the responsibility to report any crime they have become aware of to the designated law enforcement authority.
The fact that the individual accused of criminal behavior in this case is an employee of a publicly own utilities company, brings up another wrinkle in criminal procedure. The rules of “Garrity v. New Jersey” apply. Garrity is a caveat to the Fifth Amendment to the United States Constitution which protects citizens from self- incrimination, that compels public employees to answer questions in administrative adjudication without fear of subsequent criminal prosecution. (all public agencies today have or should have a garrity procedure in place)
If this person was questioned in an administrative procedure which she obviously was, then the following should have happened:
- She should have been advised of the consequences of the investigation. (discipline, termination etc.)
- She should have been advised that not answering questions could lead to termination.
- She should have been advised that she would not face subsequent criminal prosecution for answering investigative questions.
- All questions should be narrowly and directly related to her duties
- All of this should be contained on a document for the employee to sign.
If these procedures were not followed then her 5th, 6th, and 14th Amendment rights may have been violated. For prosecution under garrity a separate and parallel criminal investigation must be conducted not using evidence and/or testimony gleaned from the administrative process.
My point today is that the mayor and board of commissioners cannot decide on prosecution, but if proper procedures were not followed the City of Clarksdale may not even be eligible to even file charges on this individual.
Criminal Procedure Consultant
25 year law enforcement veteran