Request By:
Mr. Martin Z. Kasdan, Jr.
Attorney
Department for Human Resources
Office of the Counsel
275 East Main Street - 4W
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter deals generally with the role of the commonwealth's attorney in incompetency proceedings under KRS Chapter 203.
Under KRS 203.014, prior to a 1978 amendment, the statute provided that in each inquest the court shall appoint a member of the bar association to represent and protect the interests of the defendant, and the attorney for the Commonwealth also shall prevent the finding of any person to be incompetent who, in his opinion, is not such.
Under the 1978 amendment [1978 Acts, Ch. 209, § 2], KR 203.014 reads:
"All proceedings under this chapter shall be deemed mental inquests which are non-adversary in nature, but in which the Commonwealth has an interest in ensuring that the proceedings are properly and expeditiously conducted for the benefit and protection of both the defendant and society. The court shall appoint a member of the bar association to represent and protect the interests of the defendant, and the attorney for the Commonwealth shall represent the interest of the Commonwealth and shall assist the court in its inquiry by the presentation of evidence and also shall prevent the finding of any person to be incompetent who, in his opinion, is not such."
The amendment clearly makes provisions for the appointing of a member of the bar to represent the defendant. Clearly the commonwealth's attorney is to represent the interests of the Commonwealth, although such proceedings are non-adversary in nature. Now in addition to delineating the respective roles of the defendant's attorney and the commonwealth's attorney, the statute adds that the Commonwealth has an interest in ensuring that the proceedings are properly and expeditiously conducted for the benefit of the defendant and society, and that the commonwealth's attorney shall prevent the finding of any person to be incompetent who, in his opinion, is not such.
You suggest that the present statute may present a conflicting role. We do not think so.
First, the statute explicitly provides that an appointed attorney shall represent the defendant's interest in the non-adversary proceedings, and the commonwealth's attorney shall represent the state's interest. The additional provisions in the statute requiring the commonwealth's attorney to look out for the balanced interest of the defendant and the state as the society is nothing more than an analogous embellishment of the duty which the commonwealth's attorney has always had in criminal matters. That duty is simply to do justice; and there is no duty to convict.
A criminal prosecutor has two objectives: (1) Enforcing the laws of the government against violators; and (2) He is obliged to ensure that justice is done for an accused. The court wrote, in
United States v. Barker (U.S.C.A. -6, 1977) 553 F.2d 1013, that "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
Justice Sutherland, in Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314 (1934), emphasized that the duty of a prosecutor in a criminal case is not to win a case, but to do justice.
Cases have held that a lunacy inquest is a special proceeding to determine the mental status of a person; and that it partakes of the nature of a civil action in personam as it is primarily for the good of the person whose mental state is in question. Yet, since the public is concerned and the proceeding involves the element of personal liberty, it has been regarded as a quasi criminal proceeding.
Cadden v. Commonwealth, Ky., 242 S.W.2d 409 (1951) 410, 411; and
Sabin v. Commonwealth, 233 Ky. 636, 26 S.W.2d 506 (1930) 509.
The case and statutory law dealing with the duties of the commonwealth's and county attorney's duties in such mental incompetency cases adopts the spirit of a profound and ancient moral principle:
"He hath shewed thee, O man, What is good; and what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?" Micah, 6:8.
In summary, KRS 203.014, as last amended, presents no potential conflict for the attorneys for the Commonwealth. In simple language, they are required to represent the interests of the Commonwealth in such non-adversary proceedings, and, in so doing, they are to be guided by considerations of what is just and right in terms of both the defendant and society. In carrying out such role the commonwealth's attorney must speak out against a finding of incompetency if, under the evidence presented, such defendant is not deemed by the commonwealth's attorney to be incompetent. His role is not to see that some person is declared to be incompetent.
While we realize the term "justice" is a complex term, yet in the practical context of an actual case the moral principle of justice, although abstract on its face, may be concretized and practically applied in such actual case by the commonwealth's attorney.