Yes, Virginia, There is Private Prosecution . . . But It’s Rarely a Good Idea
Private prosecutions are not a unique feature of Virginia law and the practice is even common in some states. In Virginia, however, the practice is usually confined to two instances. The first is where an expert in a field that is beyond the common knowledge of the typical day-to-day prosecutor is hired by a victim or other interested party. One such case is Riner v. Commonwealth, 268 Va. 296 (2004), in which the family of the victim hired an expert in arson to assist the Commonwealth in proving that Riner set a fire in his home to destroy the evidence that he had murdered his wife. The more typical instance is where a victim or other interested party wishes to pursue a which the Commonwealth generally would not, usually in conjunction with a civil suit filed by the employer of the private prosecutor. In either case, however, the prosecution must still be subject to the direction of the elected Commonwealth’s Attorney and is subject to the same ethical standards as a public prosecutor, which is what brought the case of Mary Price v. Commonwealth of Virginia, 11/4/2020, to the Court of Appeals of Virginia.
Mary Price and Veronica Drew were involved in some form of altercation, the details of which are not recounted in the opinion, resulting in a charge of simple assault against price. [Editor’s comment: Having spent the first 27 years of my legal career working in the same office suite as a general district court judge, I can perhaps be forgiven for assuming that the altercation was in the nature of a “cat fight,” though that experience would also suggest that there should have been a cross-warrant against Drew.] Price was convicted in the general district court and noted an appeal to the circuit court. The Commonwealth “elected to permit the matter to proceed as a citizen complaint,” and Drew procured the services of an attorney who, coincidentally, was also representing Drew in her civil case against Price.
Price objected that the attorney had an inherent conflict of interest. The attorney in response “offered to withdraw” provided that the Commonwealth’s Attorney would take over the prosecution. The circuit court, however, ruled that there was no conflict of interest. Price was convicted again, sentenced to 12 months incarceration, with 10 days to serve on condition of her having no contact with Drew and completing anger management.
The Court of Appeals made short work of this case, finding that the attorney had an inherent conflict of interest that prevented him from prosecuting Price. Although this would have been sufficient to reverse the conviction, it was equally apparent that the elected Commonwealth’s Attorney was exercising no supervision over the private prosecutor. Although the conviction is reversed, the case is not yet ended as it will be remanded to the circuit court “for further proceedings, if the Commonwealth be so advised.” As of the time that this summary was prepared (February 11, 2021), the Commonwealth has not nolle prossed and the case was generally continued on February 1, 2021, suggesting that the Commonwealth is proceeding with the case and Price is presently on terms to be of good behavior and, perhaps, complete the anger management course before the charge will be dismissed.
Meanwhile, an examination of the civil court docket shows that there were indeed cross-warrants between Price and Drew filed in the general district court now on appeal to the circuit court. The civil docket also shows that Price and Simone Gardner also have cross-warrants on appeal. [Editor’s note: I’m liking my odds on “cat fight.”]