In a case closely watched by advocates for domestic abuse victims, several Supreme Court justices on Wednesday expressed serious discomfort with a District of Columbia law that lets the victims themselves bring criminal prosecutions to enforce restraining orders.
During oral argument in Robertson v. United States ex rel. Watson, at least four justices wondered aloud about the protections afforded to criminal defendants facing such charges.
Justice Antonin Scalia compared the District's system to tearing down the Department of Education and replacing it with a private corporation. "No good, right?" Scalia asked at the end of his analogy.
The case asks whether the individuals who bring criminal contempt prosecutions -- often battered women who work without the help of a lawyer -- do so as an agent of the government. In 2008, the D.C. Court of Appeals ruled that under D.C. law, Wykenna Watson was allowed to bring contempt charges against an ex-boyfriend in her own name, completely independent of any government authority.
The former boyfriend, John Robertson, had argued that the charges were barred by a plea agreement he signed with the U.S. Attorney's Office for the District of Columbia. But the D.C. court also said that Watson was not bound by the prosecutor's deal.
Dozens of professors, former judges and groups dedicated to combating violence against women signed onto amicus briefs in the case, asking the justices not to do away with or change the D.C. system, which might limit victims' ability to protect themselves from their abusers. One brief noted that at least 14 other states allow private prosecutions similar to those in D.C.
But several justices voiced grave doubts about the lower court's ruling Wednesday. Justices Scalia, Stephen Breyer and Chief Justice John Roberts Jr. all had pointed questions for Covington & Burling partner Robert Long, who represented Watson.
Breyer, employing a classics metaphor, worried that letting victims bring their own cases would be tantamount to unleashing the Furies of Roman lore, otherwise known as the goddesses of revenge.
"We are not granting these private individuals excessive authority," Long assured him.
"But you want to do that," Breyer retorted. "You are saying we want the private individuals to have the authority to bring criminal contempt. They are on their own; they decide it. The government has nothing to say about this. It's a totally private matter."
Pursuing the question of what protections defendants have in these cases, Roberts repeatedly asked Long what a private prosecutor's Brady obligations would be -- referring to the Supreme Court case requiring prosecutors to hand over potentially exculpatory material to the defense. He was joined by Justices Sonia Sotomayor and Anthony Kennedy.
Eventually, Long said that Watson had been required to meet Brady requirements during the case. But he urged the justices not to consider questions that he said had not been properly presented to the Court.
Long at one point emphasized that the private contempt prosecutions were a crucial tool in D.C., where public prosecutors had been too busy to enforce all restraining orders.
"Some problems have no answers," Scalia responded. "I mean, that doesn't prove anything."
U.S. Solicitor General Elena Kagan also received a somewhat rough round of questioning from the justices. Kagan argued that the contempt charges against Robertson were not blocked by the plea agreement because deals struck by one prosecutor do not bind another.
"When a single U.S. Attorney's office says that the government will decide to drop a certain set of charges, that U.S. Attorney's office we believe is -- is speaking for itself," Kagan said.
Roberts called that assertion "simply startling," and asked whether a defendant would have to check with all 50 U.S. Attorney's offices before agreeing to a plea deal.
This article first appeared on The BLT: The Blog of Legal Times.
