dissenting
I do not agree with the majority’s answers to the two questions certified to this Court by the United States District Court for the District of Maryland. I, therefore, respectfully dissent.
I
The majority concedes that as a general rule agreements that stifle criminal prosecutions are void as against public policy because they tend to pervert the administration of justice. See Schirm v. Wieman, 103 Md. 541, 63 A. 1056, 5 L.R.A. (N.S.) 175 (1906) and Wildey v. Collier, 7 Md. 273, 61 Am. Dec. 346 (1854). However, the majority holds that on the facts of this case an exception to the rule must be made. It premises this exception on the ground that here the State’s Attorney (acting for himself) was dealing directly with the defendant and that at no time was the prosecuting witness a party to the negotiations not to prosecute in return for the release from civil liability. Thus, they claim this case is distinguishable because the victim is not applying leverage of a criminal prosecution to its own advantage either to extract compensation from the defendant or by securing a release from civil liability.
I ask the questions: Of what advantage is it to the State’s Attorney that the defendant release Food Fair? What better and more persuasive agent could Food Fair have than the State’s Attorney to procure a release? Why should Food Fair, a powerful corporation with batteries of lawyers, negotiate with the defendant contrary to the law? One is required to be completely naive to accept the proposition that Food Fair was oblivious to- the status and progress of this criminal proceeding. The majority, however, says the State’s Attorney, whose powers are nowhere specifically defined, has wide discretion to decide whether or not to enter a nolle prosequi in a criminal case limited only by what is in accord with the fair and impartial administration of justice, untainted by any contaminating influence. The reasons given in this case for entering the nolle prosequi were that the item allegedly stolen *221was of little value and the defendant had no prior record. The majority indicates acceptance of the prosecutor’s further explanation that since Food Fair could not challenge his authority to nolle prosse, and since there was probable cause for the criminal action, he exercised his prosecutorial discretion to protect Food Fair from being sued. I respectfully submit that the State’s Attorney’s duty is to prosecute and defend on behalf of the State and he is without authority to compromise a defendant’s civil rights under these circumstances. Such an exercise of his powers is void as against public policy.
Although there is no Maryland decision directly on point, three decisions from other jurisdictions support this position; no reported decision in Maryland or elsewhere has come to my attention which refutes it.
In MacDonald v. Musick, 425 F. 2d 373 (9th Cir.), cert. denied, 400 U. S. 852 (1970), the defendant had been arrested for driving while intoxicated. At trial the prosecution moved to dismiss the case but when the defendant declined to stipulate that there was probable cause to arrest, the prosecutor withdrew his motion and filed an amended complaint adding a second charge. Subsequently, the defendant was acquitted on the first charge and convicted on the second. The prosecutor admitted that the motion to dismiss was withdrawn because the defendant would not relinquish his potential civil claim. The court said:
It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. We do not mean that the prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case. [425 F. 2d 373 at 375].
Similarly, in Boyd v. Adams, 513 F. 2d 83 (7th Cir. 1975), another case which challenged a public prosecutor’s dismissal *222of criminal charges conditioned on the defendant’s execution of a civil release, the court found the release invalid and the prosecutor’s exercise of such a practice subject to injunctive relief:
‘In sum, we find these release agreements odious and distasteful, to be enforced only in very rare circumstances. Among other requirements, there must be a knowing and intelligent waiver by the signer of the right to pursue further actions at law, and the person[s] released from liability have the burden of proving by clear and convincing proof, that no coercion or duress- of any sort was exerted upon the signer.’ [513 F. 2d 83 at 88].
Of particular interest is the memorandum by the Chief of the Criminal Division issued to Assistant State’s Attorneys, Boyd, supra, footnote 6, page 89:
An Assistant State’s Attorney is not permitted to condition his official action in a criminal case as contingent upon the action of any person in a civil proceeding (e.g. a nolle in return for a release of a civil liability). Your official action must be based only upon the merits of the criminal case before you. To do otherwise could violate Chapter 38, Section 32-1, Illinois Revised Statutes (Compromising a Crime) and would be of doubtful validity.
The majority contends that these cases are distinguishable merely because “the entry of the nolle prosequi was conditioned upon a civil release of a police officer or the state itself.” However, Gray v. City of Galesburg, 71 Mich. App. 161, 247 N.W.2d 338 (1976) makes it clear, if MacDonald, supra and Boyd, supra do not, that a release of police officers from civil liability — given in exchange for the dismissal of criminal charges — is void as against public policy on two separate grounds: (1) the public interest in prosecution is wrongly exchanged for the private interest of release from civil liability; (2) agreements of this kind involving police officers tend to suppress complaints against the police which should be publicly aired.
*223The emphasis in Gray supra was on the fact that police officers are private individuals. Their release from liability was void, in the first instance. As the Gray court expressed it:
The contract for release, if viewed in this light, becomes a trade-off of a public interest for a private interest. We recognize that there may be an indirect public interest in protecting the city’s employees from civil liability incurred while in the city’s employ. The city will naturally want to support its officers to insure that able men will bé attracted to, and remain with, the police force. However, if the officers’ conduct was tortious, the public has no interest in denying their victims redress. If; on the other hand, the officers acted legally, they are afforded the full protection of the law and. need not resort to the release for vindication. [247 N.W.2d 338 at 340].
Gray, supra went further and stated an additional ground for denying validity to such agreements — that grievances against police officers should be publicly aired because “a desire on the part of the prosecuting authority to extract police officers from possible liability offers an undeniable temptation to concoct or exaggerate the charges against the defendant to enhance his bargaining position.” 247 N.W.2d 338 at 340.
Agreements like the one in the present case are repugnant to public policy because they tend to deprive the public of their right to vigorous enforcement of the laws for the predominant purpose of benefiting individual persons. The majority opinion acknowledges that this bargain has resulted in a gain to Food Fair, but choosing to disregard the foregoing cases, comes to the conclusion that because we deal here with an agreement between a criminal defendant and the prosecuting attorney public policy is not contravened. This position is buttressed with the assumption that the State’s Attorney acted in good faith while exercising his official duty and the evidence that Food Fair did not participate in the decision of the State’s Attorney.
*224Notwithstanding the fact that no actual wrong or thought of wrong need be imputed to the parties of such an agreement for it to be void as against public policy, the record here raises a serious suspicion of bad faith on the part of the State’s Attorney. Furthermore, while there is no showing that Food Fair participated in the State’s Attorney’s decision to nolle prosse, it is clear that the most advantageous tack for Food Fair to take was to allow the State’s Attorney “to mind the store.”
The problem with allowing the prosecutor to bargain for a civil release in a criminal case is that it raises the suspicion that the decision to prosecute has been tainted. Unlike the plea bargain situation, which finds its justification in the fact that it is created in the public interest — and is generally subject to court approval — a bargain for a civil release in a criminal case can only be justified if it is: (1) within the purview of the State’s Attorney’s authority and (2) entered into in good faith.
While I recognize the broad discretionary powers the State’s Attorney has with respect to the entry of a nolle prosequi, State v. Hunter, 10 Md. App. 300, 304, 270 A. 2d 343 (1970), remanded, 263 Md. 17 (1971), I hasten to point out that the State’s Attorney’s discretion to institute and prosecute criminal causes is “subject generally to judicial control,” Brack v. Wells, 184 Md. 86, 90, 40 A. 2d 319 (1944), and such control should be reflected by our decision in this case. The proper conduct of a State’s Attorney is stated in the dissenting opinion of Judge Davidson in Sinclair v. State, 27 Md. App. 207, 222-224, 340 A. 2d 359 (1975), reversed 278 Md. 243, 363 A. 2d 468 (1976):
The standards by which to appraise the conduct of a State’s Attorney are established by Maryland law (footnote omitted). It is the duty of the prosecutor, as of every lawyer, to represent a client zealously within the bounds of the law. ABA, Code, Canon 7, Ethical Consideration 7-1. Because the power of the prosecutor to institute criminal prosecutions vests in him an authority in the administration of criminal *225justice at least as sweeping as, and perhaps greater than, the authority of the judge who presides in criminal cases (citation omitted), the responsibility of a public prosecutor differs from that of the usual advocate. His duty is to seek justice, not merely to convict. Powell v. State, 16 Md. App. 684, 694-95, n. 1, 299 A. 2d 454, 459 n. 1 (1973) (subsequent citations omitted). His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty.
Because a prosecutor represents the State, he must, as must a judge, not only be disinterested and impartial in the performance of his duties but also appear to be so (footnote omitted) (citations omitted). In order to assure fair and equal treatment to all, a prosecutor must use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute. ABA, Code, Ethical Consideration 7-13 (subsequent citations omitted). He, like a government attorney who possesses discretionary powers relative to civil litigation, should not use his position, or the economic power of the government, to harass parties or to bring about unjust settlements or results. See ABA, Code, Ethical Consideration 7-14. Finally, like all lawyers, he is forbidden to present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. ABA, Code, Disciplinary Rule 7-105; see State v. Detroit Motors, 163 A. 2d 227, 230-31 (N.J. Super. 1960). (Emphasis supplied)
These same ethical considerations were relied upon in MacDonald, supra, 425 F. 2d 373 at 376 to void the prosecutor’s agreement to nolle prosse in exchange for a civil release. Particularly significant is the MacDonald court’s *226recital of ABA, Code, Disciplinary Rule 7-105 and the comment that public prosecutors, like all other lawyers, are bound by the rule. 425 F. 2d 373 at 376.1 submit that State’s Attorneys in Maryland also should be bound by the ABA Code of Professional Responsibility, and that absent a clear legislative intent to authorize State’s Attorneys to enter these agreements they should be barred from doing so by the general public policy rule against such agreements.
In the present case the State’s Attorney had a duty to decide whether or not to nolle prosse without considering the defendant’s possible course of conduct with respect to a future civil claim. I would adhere to the principle that “when a state’s attorney determines that the public interest requires prosecution, it is his duty to zealously seek to convict those guilty of crime.” The majority’s concern for the public interest in encouraging the legitimate victims of crime to freely report such offenses is commendable. On the other hand, however, the State’s Attorney should not be in a position to shield the alleged victim of crime from civil liability for conduct which may have been tortious. Certainly the public has no interest in denying redress to innocent individuals who have been wrongly accused of crime. My answer to the first question would be that it is against public policy for the State’s Attorney to require release in return for a nolle prosse.
II
The second question: “If such a release is not void as against public policy, do the circumstances under which it was executed constitute duress as a matter of law?” should be answered in the affirmative.
Two factors stand out as determinative of this question: first, time from arrest to prosecution and second, the failure of the State’s Attorney to keep his word regarding the admissibility of the results of the polygraph tests. The defendant protested her innocence from the outset and expressed her willingness to go to any lengths to prove she was telling the truth. On August 4, 1975, when approached *227by the security guard on the parking lot, she denied stealing the package of meat and told the guard she had placed it on a shelf in another aisle. She took him to the aisle and produced the package. The whole thrust of her defense was that the guard was lying when he said she took it out of her pocketbook and put it on the shelf.
She offered to submit to a polygraph test and pay the costs but the State’s Attorney demanded that the Maryland State Police conduct the examination. When the judge in District Court on January 9,1976,refused to postpone the case so she could take the polygraph test, she prayed a jury trial so that the test or examination could be conducted. Not only did she take one test but two tests and in each the result indicated that she was truthful. However, the State’s Attorney reneged on his agreement and told her he would not agree to have the results admitted into evidence. Despite the defendant’s attorney’s effort, the State’s Attorney refused to keep the bargain. Thus, on May 25,1976, nine months after her arrest, the morning of trial in the Circuit Court, the defendant was' forced to sign the release rather than subject herself to possible conviction and punishment.
Is there any question that the State’s Attorney demonstrated bad faith in reneging on his promise to admit the polygraph results? It seems clear that this evidence would have been damaging to the State’s case on trial and would have substantiated defendant’s assertion of her innocence. Contrary to the majority claim that “missing here are those efforts to exploit or oppress ... or to misuse the power of the prosecutor’s office ... which normally characterize this species of duress,” the State’s Attorney stripped the defendant of exculpatory evidence and then used the threat of prosecution to extract a civil release. The defendant, a mother of two children, never having been arrested before, having the pressure of criminal prosecution hanging over her for nine months, was coerced into executing the release.
The majority is satisfied that, “[gjiven the existence of probable cause, the State’s Attorney was merely complying with his statutory mandate” in going forward with the prosecution. Nevertheless, while it is apparent from the *228record that probable cause existed at the time of arrest, one is left to wonder why the polygraph evidence did not cause the State’s Attorney to reconsider the advisability of pursuing a prosecution or why, indeed, he denied the defendant the use of this evidence knowing full well the stimulus such denial would have in persuading a defendant to execute a release.
What the State’s Attorney did was inherently coercive and amounted to duress as a matter of law.