P. Christian Adamski - Authority for Criminal Appellate Prosecution

I thank all the attorneys who talked with me and helped me understand their state's laws. Any errors still found below are my errors alone. I did not reach out to attorneys from every state, so not every state has been corroborated by a discussion with a local attorney.

Regarding the map: I did not color states in strict adherence to the formal division of appellate authority. For instance, formally, local offices in California and Wisconsin have appellate authority. But I have colored these states as if appellate authority was exclusively with the state office, as the appellate authority apportioned to the local office in my judgment is nominal. I make a judgment that authority is nominal if there is low to no potential for precedential caselaw and if there is insufficient workload to constitute an appeals-exclusive unit in even the largest local office.

California

The district attorney prosecutes cases in the trial courts. West's Ann.Cal.Gov.Code § 26500. The attorney general prosecutes appeals before the appellate courts, with the exception that non-felony case appeals before the Superior Court's Appellate Division are handled by the district attorney. West's Ann.Cal.Gov.Code § 12512; West's Ann.Cal.Penal Code § 1256; (?).

Colorado

The district attorney prosecutes cases in the trial courts. C.R.S.A. § 20-1-102(1). The attorney general prosecutes appeals. C.R.S.A. § 24-31-101(1)(c).

Idaho

Prosecuting attorneys prosecute criminal cases in the district courts of their counties. I.C. § 31-2604. The attorney general prosecutes appeals (?).

Iowa

County attorneys prosecute criminal cases in the district courts of their counties and the attorney general prosecutes appeals. Iowa Code §§ 331.756(2), 13.2(1)(a); State v. Gill, 143 N.W.2d 331, 332 (Iowa 1966).

Michigan

The prosecuting attorney prosecutes cases before the courts of his county. M.C.L.A. 49.153. The attorney general prosecutes cases on appeal (before the Michigan Supreme Court, at least). M.C.L.A. 14.28; People v. Foster, 140 N.W.2d 513, 514 n.1 (Mich. 1966). [Is it by practice or by law that the prosecuting attorney will write the brief? It seems some prosecuting attorney offices have appeals units.]

Minnesota

County attorneys prosecute criminal cases and, in the court of appeals, their appeals. Minn. Stat. §§ 388.051, 8.01. Formally, the attorney general is authorized to prosecute criminal appeals before the supreme court. Minn. Stat. § 8.01; State ex rel. Goff v. O'Neil, 286 N.W. 316, 318 (Minn. 1939). But my understanding is that the attorney general typically designates cases back to the county attorney to handle the appeal.

Montana

County attorneys prosecute criminal cases in the district courts of their counties. MCA 7-4-2716. The attorney general prosecutes criminal cases on appeal. MCA 2-15-501. See also Indep. Pub. Co. v. Lewis & Clarke Cty., 75 P. 860, 861 (Mont. 1904).

Nevada

North Dakota

The state's attorney prosecutes cases before the district courts. NDCC, 11-16-01(1)(a). Formally, the attorney general prosecutes criminal cases on appeal. NDCC, 54-12-01(1). My understanding, however, is that the state's attorney generally prosecutes the appeal.

Oregon

District attorneys prosecute cases in their counties. O.R.S. § 8.660. The attorney general prosecutes criminal cases on appeal. O.R.S. § 180.060.

Pennsylvania

District attorneys prosecute criminal cases and their appeals. 16 P.S. § 1402(a). The attorney general's jurisdiction over appeals is limited to when a district attorney requests and the attorney general agrees to prosecute the appeal. 71 P.S. § 732–205(c).

South Dakota

The state's attorney prosecutes cases in the courts of his county. SDCL § 7-16-9. The attorney general prosecutes criminal appeals. SDCL § 1-11-1(1). See also State v. Hughes, 4202 N.W. 285, 286 (S.D. 1925).

Texas

Criminal district attorneys, county attorneys, and district attorneys prosecute criminal cases and, in the courts of appeal, their appeals. Tex. Const. art. V, § 21; Tex. Gov't Code § 42.005(a); Tex. Code Crim. Proc. art. 2.01-2.02; Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002). These officials may prosecute appeals before the court of criminal appeals, but only if the state prosecuting attorney, who is authorized with prosecuting cases before that court, chooses not to do so. Tex. Gov't Code § 42.001(a); Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001). The state prosecuting attorney may intervene and prosecute any appeal before the courts of appeal when he considers it necessary for the interest of the state. Tex. Gov't Code Ann. § 42.001(a); Taylor, 36 S.W.3d at 887.¹

¹ I read one authority, in its reading of Taylor, as suggesting that the state prosecuting attorney and the local attorney may simultaneously yet inconsistently represent the state before the courts of appeal. George E. Dix & John M. Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 55:8 (3rd ed.). I read Taylor differently.

Utah

City, county, and district attorneys prosecute misdemeanor appeals. U.C.A. 1953 §§ 10-3-928(4), 17-18a-403(2). The attorney general handles all other appeals. U.C.A. 1953 §§ 17-18a-403(1), 67-5-1(2).

Washington

Prosecuting attorneys prosecute criminal cases and their appeals. RCW 36.27.020. The attorney general may only handle or assist on a criminal appeal upon the prosecuting attorney's request. RCW 43.10.250.

Wisconsin

District attorneys prosecute criminal cases in the courts of their county. Wis. Stat. § 978.05(1). They prosecute misdemeanor appeals that are decided by a one-judge court of appeals panel. Wis. Stat. §§ 752.31(2)(f), 752.31(3), 978.05(5). The attorney general handles misdemeanor appeals that are granted a three-judge court of appeals panel, all felony appeals, and all appeals before the supreme court. Wis. Const. art. VI, § 3; Wis. Stat. §§ 165.25(1), 752.31(4).

Wyoming

The district attorney and the county and prosecuting attorney prosecute criminal cases in the trial courts. W.S.1977 § 9-1-804(a)(i); W.S.1977 § 18-3-302(b). The attorney general handles criminal appeals. W.S.1977 § 9-1-603(a)(ii).