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The "Hired Gun": An Anachronism in Texas Criminal Procedure

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Title: The "Hired Gun": An Anachronism in Texas Criminal Procedure
Author: Bubany, Charles P.
Abstract: This article discusses the practice of privately-employed attorneys acting as public prosecutors in Texas. Professor Bubany points out that case law in Texas permits private attorneys to participate as mere volunteers or as employees of either the prosecution itself or interested private parties. Case law technically limits the private attorney’s participation to assistance, requiring the public prosecutor to retain control, management, and supervision of the case; however, Professor Bubany posits that this theoretical limitation is not enforced in practice. Bubany cites specific cases where the limitation was not enforced. The leitmotif of the article is that the practice of permitting private attorneys to perform the task of a public prosecutor is inconsistent with modern theories of punishment, and with the prevailing standards of proper prosecutorial conduct. Bubany posits that the greatest danger of private prosecutions is that an overzealous attorney will commit errors that are not only prejudicial to the defendant, but ultimately to the State. Professor Bubany concludes that brief article by encouraging defense attorneys, in cases where it is possible that a private attorney will participate in prosecution, to consider filing a pre-trial motion for a protective order directing the State’s attorney to handle the case and restricting the private attorney from participating. Professor Bubany provides an example of such a pre-trial motion.
URI: http://hdl.handle.net/10601/1626
Date: 1975

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