COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
KATHY MYRTLE ADKINS
OPINION BY
v. Record No. 2158-96-3 JUDGE JAMES W. BENTON, JR.
NOVEMBER 10, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
Buddy H. Wallen for appellant.
Ruth Ann Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this appeal, we consider whether the trial judge violated
the defendant's due process rights by appointing the private
prosecutor retained by the victim's family to act as special
prosecutor after the Commonwealth's attorney withdrew from the
case. For the reasons that follow, we reverse the convictions
and remand for a new trial.
I.
Kathy Myrtle Adkins was indicted by a grand jury for murder
and use of a firearm in the commission of murder. Prior to her
indictment, the victim's family hired David Epling, a private
attorney, to assist in the prosecution of the case. Epling
worked closely with an assistant Commonwealth's attorney and
participated in the decision to indict Adkins on the charges.
While the case was pending, Sheila Tolliver was elected to
serve as Commonwealth's Attorney and assumed the office. Because
Tolliver had previously represented Adkins' daughter, Tolliver
filed a motion for leave to withdraw and for appointment of a
special prosecutor. Due to Tolliver's conflict, the trial judge
granted the motion and appointed Epling to serve as special
prosecutor. See Code § 19.2-155.
Adkins objected to the appointment of Epling. At a hearing
on the issue, counsel for Adkins stated that Adkins' concern was
that "Epling is prosecuting her after being employed by the
family to do that." Counsel further stated that Adkins "is
entitled to a totally independent, objective prosecutor." Epling
responded that he was no longer being compensated by the victim's
family. Affirming the appointment, the judge stated that he
considered "Epling as a totally independent and impartial
prosecutor." The judge further noted that although Epling "may
have been employed by the family, . . . that would [not] qualify
him as an inappropriate person for prosecution in the cases."
Adkins was tried and convicted. She filed a motion to set
aside the verdict because her rights to due process and a fair
trial were denied by allowing Epling to act as special
prosecutor. The trial judge denied the motion.
II.
Virginia adheres to "the common-law rule which generally
permits the appearance of private counsel to assist the
prosecution." Cantrell v. Commonwealth, 229 Va. 387, 392, 329
S.E.2d 22, 26 (1985) (emphasis added). "At common law, a
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prosecuting attorney 'is the representative of the public in whom
is lodged a discretion . . . , which is not to be controlled by
the courts or by an interested individual.'" Ganger v. Peyton,
379 F.2d 709, 713 (4th Cir. 1967) (citation omitted). "'[T]he
breadth of discretion that our country's legal system vests in
prosecuting attorneys carries with it the potential for
individual and institutional abuse.'" Lux v. Commonwealth, 24
Va. App. 561, 568, 484 S.E.2d 145, 148 (1997) (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978)). Thus, we
require impartiality in the exercise of discretion on the part of
the prosecutor. See Berger v. United States, 295 U.S. 78, 88
(1935).
This case is governed by the principles the Supreme Court of
Virginia set forth in Cantrell. There, an attorney was hired by
a murder victim's family "to help get . . . Cantrell convicted."
229 Va. at 391, 329 S.E.2d at 25. Although the Commonwealth's
attorney was present at the trial and took an active role, the
private prosecutor examined most of the witnesses, generally
acted as lead counsel, and made the closing argument to the jury.
The private prosecutor was also retained by the family in a
civil suit to seek a change in custody of Cantrell's child from
Cantrell to the victim's parents. See id.
Cantrell argued that the private prosecutor's employment by
the victim's family created a conflict of interest which rendered
the private prosecutor's participation in the criminal
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prosecution improper to a degree that denied Cantrell due process
of law. He also argued that the private prosecutor had an
incentive other than the impartial administration of justice to
seek a conviction.
In discussing the limitations on the role of a private
prosecutor, the Supreme Court stated that when a private
prosecutor has been engaged to assist in a criminal proceeding,
"the public prosecutor must remain in continuous control of the
case." Id. at 393, 329 S.E.2d at 26. Noting the different roles
of a private and a public prosecutor, the Court stated that the
duty of a private prosecutor is to zealously represent his
client's interests while a public prosecutor's duty is "'to seek
justice, not merely to convict.'" Id. Thus, the Supreme Court
ruled that the private prosecutor's dual role as prosecutor and
civil attorney created a conflict of interest which interfered
with the fair administration of justice. The Court held that,
under the circumstances, the private prosecutor's role infringed
on the defendant's right to a fair and impartial trial.
The Commonwealth contends that in Cantrell the private
prosecutor had not been formally appointed as a special
prosecutor, was not being paid by the Commonwealth, and had not
taken an oath of office. The Commonwealth argues that Epling was
formally appointed as special prosecutor and that, although
Epling was initially hired by the victim's family to help in the
prosecution of Adkins, he never represented them in any civil
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matter. Also, Epling terminated his representation of the family
upon his appointment and was no longer being compensated by them.
While the facts in this case differ from those in Cantrell,
the rationale of Cantrell still applies. A public prosecutor is
vested with a duty not merely to convict but to see that the
accused receives a fair and impartial trial. A special
prosecutor appointed by the trial judge steps into the role of
public prosecutor and necessarily accepts that duty of
impartiality. However, where a special prosecutor has a
"personal interest in the outcome of the prosecution," Lux, 24
Va. App. at 569, 484 S.E.2d at 149, "his objectivity and
impartiality are called into question," id., and a defendant's
right to a fair and impartial trial is violated. A special
prosecutor who was formerly employed by the victim's family in
connection with the same proceeding is incapable of exercising
the fair-minded prosecutorial discretion to which the defendant
is entitled, see id., due to his pre-existing interest in
securing the conviction of the defendant. Once the private
prosecutor who has been paid by the victim's family to obtain a
conviction becomes the special prosecutor with full discretionary
authority, obviously, the opportunity to give full reign to the
partiality that initially existed is unchecked.
Epling was initially hired and paid by the victim's family
to protect its interest, not the interest of the Commonwealth.
When Epling was appointed special prosecutor, he was no longer
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merely assisting in the prosecution; he was given ultimate
control of the case. In view of Epling's earlier receipt of
payment by the victim's family to represent them in the
prosecution of Adkins, he owed his allegiance to those clients
and had a duty not to act adversely to their interest. We cannot
say that when the trial judge appointed Epling as special
prosecutor, with sole authority to make prosecutorial decisions,
Epling was then able to act with fair-minded discretion and
impartially or unprejudiced by motives related to his earlier
private gain. "The likelihood of conflict between those two
duties rises to the level of an overwhelming probability."
Cantrell, 229 Va. at 393, 329 S.E.2d at 26.
Having once been paid by the victim's family to protect its
interest and to assist in the prosecution, Epling was prohibited
for reasons of conflict of interest from becoming a special
prosecutor. The conflict of interest between a special
prosecutor's duty "to seek justice" and his duty to his former
client denied the defendant her right to a fair and impartial
trial. See id. at 394, 329 S.E.2d at 26-27. Accordingly, we
reverse the convictions and remand for further proceedings.
Reversed and remanded.
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