People ex rel. Lindsley v. District Court

Per Curiam. The sum and substance of the preceding preliminary statement, which fully states the attitude of the respective parties, is, that the respondent, who is presiding judge of the criminal division of the district court of Arapahoe county at the present term, has been advised—through various sources of information which he deemed sufficiently reliable to prompt him to act—of an attempt to bribe jurors engaged in the trial of the Anderson case and of the subsequent proceedings against these parties, which, it is claimed were instituted in their interest and for the purpose of securing their acquittal, and proposes to submit these matters to a grand jury for investigation; and inasmuch as these alleged acts include every branch of the criminal division of the court in which they were said to have taken place, and that he will charge that in considering these matters every branch of the criminal division should be investigated, it is his intention, as soon as a grand jury is empaneled and charged, to appoint an attorney in the place and stead of the district attorney, to take special charge of the investigation before them, touching these matters. The question for us to determine is, has the respondent judge this power, in the circumstances of this case ? If he has the jurisdiction to take this course, or having it, does not propose to exceed his legitimate powers, then this court cannot interfere by prohibition. Such is the test to apply in proceedings of this character. McInerney v. City of Denver, 17 Colo., 302- The argument of relator is, in brief, that he cannot be supplanted except in the manner provided by law. in support of this proposition it is argued that the — 13 — office of district attorney is a constitutional one, the constitution having provided that the incumbent cannot be removed except in the manner provided by law, it follows that relator cannot be removed except for the causes and in the manner pointed out by the statute. This proposition, though correct, is not applicable. The relator has not been removed from his office, nor is it the purpose of the respondent judge'to remove him. All the judge proposes doing is to appoint some person to advise the grand jury in matters submitted to it in which the district attorney's conduct is a subject of investigation. 1 Mills Ann. St.sec. 1303, provides that if any district attorney shall have been presented, the court shall have the power to appoint for that occasion a prosecuting attorney. This provision, in its ordinary sense, must be taken to mean that if a grand jury shall notify the court that it has taken notice of an offense which, it is claimed, the district attorney has committed, it would be the duty of the judge to appoint counsel to take charge of the matter. This is not the case we are called upon to consider; neither does the section in question limit the authority of the court in the premises, as applied to the circumstances under which the respondent judge has signified his intention of acting. It is his purpose to order an investigation by a grand jury of certain matters which, it is charged, involve the district attorney and his office. In other words, that certain alleged offenses in which it is said, the district attorney is implicated, are to be investicated by a grand jury under the direction of the respondent. To say that the court must wait, before appointing counsel to assist the grand jury in such an investigation, until that body has reported that the district attorney is guilty of — 14 — some offense, would be a strange doctrine. The district attorney is the legal adviser of the grand jury; it is his duty to appear before and advise them from the evidence what charges to make; what testimony is material, relevant and sufficient, and what is not; and if, prior to his presentment, no one can be substituted in his place and stead to manage an investigation in which, from the charge of the court, he is directly or indirectly implicated, it would be within his power to thwart the administration of justice by preventing the preliminary steps being taken necessary to the finding of an indictment. i Mills Ann.St. sec. 1556 provides that if the district attorney is interested or shall have been employed as counsel in a case, the court having criminal jurisdiction may appoint some other person to prosecute or defend such cause. On the strength of this provision it is urged on behalf of the relator that the facts do not warrant the action of which he complains, and that there must be some particular case in which he is interested, or at least his interest, before it disqualifies him from acting, must be of that character that it is capable of precise proof, and that before this can be ascertained some direct charge must be made which he has the right to meet and refute. With respect to cases actually pending before the court, or to be investigated by a grand jury in which it does not appear upon the face of the proceedings or the charge of the court, that the district attorney is interested, this may be true, although we do not so decide, for that is not the question presented. As already stated, in effect, the purpose of the respondent judge is to submit to the consideration of a grand jury certain matters touching the administra — 15 — tion of justice,and certain offenses alleged to have been committed which have been called to his attention in connection with, or in the commission of, which the district attorney is involved. In such circumstances no preliminary proceedings are required. If, from any source which he deems sufficiently reliable to prompt him to act, the judge obtains information implicating the district attorney in any alleged offense which he has called to the attention of the grand jury, and acting on such information, directs that body to investigate the district attorney with respect to such offense, such action ipso facto disqualifies the district attorney from acting in such matters; and the judge so doing, charged as he is with the responsibility of not knowingly permitting the channels of justice to become obstructed, has the undoubted authority, and it would be his bounden duty, to appoint an attorney to act in the place and stead of the district attorney with respect to such matters. The district court has the inherent power to protect itself, and direct investigations in a manner which will render them thorough and impartial—People v. Roberts, 11 Colo. 213. Reason dictates and simple justice demands that no official or individual can take part in an investigation before a grand jury the result of which may affect him, either directly or indirectly. The district attorney very frankly stated, at the time the memorial of the Bar Association was presented to the respondent judge, that if charges were presented against him before the judges of sufficient gravity to warrant presentment to a grand jury, he would, of his own accord, step aside and ask the judges to appoint a special prosecutor. This action was undoubtedly prompted by a desire on the part of the district attorney to afford the fullest investigation of — 16 — his conduct; and although he appears here for the purpose of contesting the right of the judge to appoint a special prosecutor, he does not resist such contemplated action except for the reason that no formal charge has been preferred. If the investigation is to be before the grand jury, there can be no formal charge until they have concluded their investigation. Whether he is guilty of some offense to .which the attention of the grand jurors may be directed is not a question which the court can determine in advance, for the question of whether he shall or shall not be indicted is one which the grand jury must solve. If his conduct is to be considered by the grand jury, either of its own motion or at the suggestion of the court, he must abide the result the same as any other citizen. Our conclusion, therefore, is that it is the duty of the respondent judge, if he knows or has reason to believe that a particular class of crimes, or some particular crime, has been committed which should be investigated by a grand jury, to instruct them in open court as to the law and their duty relative thereto. If he knows, or has reason to believe, from information which he considers reliable,that the district attorney is involved in such crimes, or crime, or that his conduct in connection therewith is such that should be investigated at the hands of the grand jury, and so charges, it would be his bounden duty to appoint an attorney to act in the place and stead of the district attorney with respect to such matters. Such an appointee should be of the court’s own selection, and as to the matters for which he is appointed, he becomes vested with all the powers of the district attorney, but independent of that official. As to all matters which might come before the grand jury other than those for which a special prosecutor — 17 — was appointed,’the regular drstrict attorney would be free, and it would be his duty, to act. For this reason the judge in his charge to the grand jury should particularize with care those matters to which their attention was directed, and in which an attorney was appointed for the special purpose of aiding the grand jury in investigating. From the facts disclosed by the pleadings before us, the respondent judge intends to pursue this course, guided in his action by the law relative to the appointment of a special district attorney, as we have herein indicated. We must, therefore, conclude, that in his official capacity he has jurisdiction to take the steps of which relator complains, and that in so doing he does not purpose to exceed his legitimate official powers. The petition is denied, the rule discharged, and the proceedings dismissed.