Walker v. State

THOMAS, Justice,

concurring specially.

I can agree with the manner in which this case is disposed of by the majority opinion, although, if left to my own devices, I would simply reverse the conviction and remand it to the County Court under the supervisory authority of this court.1 If I *546were pressed to reach the question of whether an error of law occurred, I well might agree with the dissenting justice that there is no prejudicial error of law requiring reversal. I would not reach that question, however.

I can only perceive the refusal to name the victims in felony charges for taking indecent liberties with minors as nothing more than inane gamesmanship. Ultimately, the disclosure of the identities had to be made, and there is no justification for not advising the defendant of those facts from the outset. A conclusion that the defendant knew the identities of the victims, while perhaps accurate, is consistent only with a presumption of guilt, not a presumption of innocence.

It may be that the prosecutor was relying upon a strained reading of Wyo.Stat. § 14-3-106 (1986), which provides, in pertinent part:

(a) Prior to the filing of an information or indictment charging a violation of W.S. 14-3-104 or 14-3-105, neither the names of the person accused or the victim nor any other information reasonably likely to disclose the identity of the victim shall be released or negligently allowed to be released to the public by any public employee except as authorized by the judge or justice with jurisdiction over the criminal charges. The name of the person accused may be released to the public to aid or facilitate an arrest.
(b) After the filing of an information or indictment and upon the request of a minor victim or another acting on behalf of a minor victim, the trial court may, to the extent necessary to protect the welfare of the minor victim, restrict the disclosure or publication of information reasonably likely to identify the minor victim.
(c) Any person who willfully violates this section or who willfully neglects or refuses to obey any court order made pursuant thereto is guilty of contempt and upon conviction shall be fined not more than one thousand dollars ($1,000.00) or be imprisoned in the county jail not more than ninety (90) days, or both.

This statute, however, provides ample protection against public disclosure without foreclosing notice to the defendant. Consequently, it would not serve to justify what occurred in this case.

In Petition of Padget, 678 P.2d 870 (Wyo.1984), this court clearly recognized the separation of powers doctrine in connection with prosecutorial decisions. In that case, we said, “[ojnce the decision to prosecute has been made, then the judiciary becomes involved, but not before.” Padget, 678 P.2d at 873. See Billis v. State, 800 P.2d 401 (Wyo.1990). The county court, initially, and the district court, later, had the authority to require the prosecutor to disclose the names of the victims. That disclosure should have been required of the prosecutor promptly, upon pain of dismissal of the complaint.

From my perspective, there is no need to decide in this case whether or not an error of law occurred. In the exercise of this court’s supervisory authority, we can direct the inferior courts to do what is right in the furtherance of justice. That is exactly what I would do in this instance, and I would rest the decision upon our supervisory authority only, without reaching the question of an error of law.

I can agree with the majority because the case is disposed of in substantially the same way by permitting the refiling of the charges.

. Wyo. Const. Art. 5, § 2, provides:

The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior *546courts, under such rules and regulations as may be prescribed by law. (Emphasis added.)