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Fw: Plea bargains and private prosecutors : SCOTUSblog

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  • Jon Roland
    Then Solicitor General Elena Kagan filed /amicus/ brief in support of private prosecution. ... Subject: Plea bargains and private prosecutors : SCOTUSblog
    Message 1 of 1 , Feb 20, 2013
      Then Solicitor General Elena Kagan filed amicus brief in support of private prosecution.

      -------- Original Message --------
      Subject:Plea bargains and private prosecutors : SCOTUSblog
      Date:Wed, 20 Feb 2013 14:46:05 -0500
      From:James 'States' Manship <james@...>

      In emails earlier this week I said I remembered reading about Kagan, when Solicitor General, presented an Amicus brief in favor of a Private Prosecutor.

      I believe that the revival of the Private Prosecutor is a necessary adjunct to the Citizens Recovery of Our American Republic by means of the Grand Jury restoring accountability of public servants, elected, appointed, and employed, of any of the other three branches of our Governments, at local, state, or federal levels, to do their duty to the Citizens, and duty to God and Country.

      Therefore this US
      USSC case with the question of Private Prosecutor within the past three years could be instructive.

      I often read ScotUS blog, so that may be where I first saw it.  Here is a link...

      Kagan did not appear very well prepared for her presentation before the supreme Court, but who cares, she was slated for joining the justices by Obama from before that appearance.

      Would be interested in anyone's assessment of Kagan's Amicus brief on this private prosecutor case, in case you want to post it to any online groups for comment:

      A reference page with lots of links is at:

      Holding: The Court held that it should not have heard the case in the first place, thereby decliningto decide whether a private party can bring an action for criminal contempt.

      JudgmentDismissed as Improvidently Granted in a per curiam opinion on May 24, 2010. Chief Justice Roberts dissented, joined by Justices Scalia, Kennedy, and Sotomayor.

      Docket No.Op. BelowArgumentOpinionVoteAuthorTerm
      08-6261D.C. App.Mar31, 2010
      May 24, 20109-0PerCuriamOT 2009

      In GW, James

      Chief Justice Roberts then pressed Long on the details of his position, asking what Brady obligations Watson would have as a private prosecutor.  (Under Brady v. Maryland(1963), prosecutors are required to provide defendants with any exculpatory evidence in their possession.)  Justices Sotomayor and Kennedy joined in this line of questioning.

      Appearingas amicus curiae onbehalf of Watson, Solicitor General Elena Kagan staked out a somewhat different position.  General Kagan conceded that Robertson was "right that in this criminal contempt action, Ms. Watson . . . was and must have been exercising sovereign power."  She elaborated that, as the government understood it, Watson "was exercising sovereign power on behalf of the Article I court, the D.C. court  power whose initial source, original source, is Congress."

      Justice Scalia suggested that only the government has the power to incarcerate people; "courts" do not.  General Kagan accepted that "the court is surely part of the government, and in the end this is power of the United States."  She went on to suggest that when a U.S. Attorney's Office signs a plea agreement, it binds only that office"”a position that Chief Justice Roberts described as "absolutely startling."

      Justice Scalia then asked whether, in order to agree with the government, he had "to accept this argument that the prosecutor here is an agent just of the court, just of the D.C. court, not an agent of the executive?"  General Kagan asked, "Who would you like the person to be an agent of, Justice Scalia?"  Chief Justice Roberts indicated that "[u]sually we have questions the other way."  Justice Scalia doubted whether courts had "ever asserted that they themselves [as opposed to the executive or the government as a whole] have the power to prosecute."  General Kagan suggested, however, that Young was such a case.

      Chief Justice Roberts asked whether a Section 1983 action or a Bivens action could be brought against a private prosecutor who had abused her office.  General Kagan replied that she had not thought about the question, but that a private prosecutor certainly had Brady obligations.

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