Private citizens can file criminal complaints against others without the district attorney’s involvement, but a Las Vegas prosecutor says people should think twice before taking that route.
Chief Deputy District Attorney Joe Ulibarri said it may seem appealing at first to file such a case, but it’s hard for private citizens to win because they have to know all of the court’s procedures.
“They don’t realize they’re becoming the district attorney in such cases,” he said. “They are held to the same standards of a lawyer.”
Instead, he advises crime victims to go to law enforcement agencies and ask why they aren’t sending information to the district attorney’s office for possible prosecution.
Because of limited resources, Ulibarri said, the district attorney’s office can’t pursue all cases involving private citizen prosecutions, but it reviews them and sometimes decides to prosecute.
In September, a Las Vegas man allegedly attacked two residents in separate, unrelated incidents. In one case, the alleged victim pursued the matter and filed a criminal complaint himself. In the other, the district attorney is considering prosecuting because the alleged victim in that case hadn’t gone it alone.
The 31-year-old suspect hasn’t been arrested in either case.
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In the first case, the alleged 19-year-old victim told city police that he was at Pecos Street and University Avenue in the early evening of Sept. 6 when two men drove up. The teenager alleged that the passenger, the 31-year-old suspect, got out and struck the alleged victim repeatedly as he still sat in his car.
The teen said the suspect told him he still owed money on a car he had bought from him. The suspect reached in and took the keys and threatened to take the car until he was paid, a police report states.
The alleged victim admitted that he owed the suspect $400. Police Officer Juan Montao said he looked at the title of the car that the suspect allegedly took and found that the vehicle belonged to the alleged victim’s sister. The car was found on the 31-year-old’s property behind tall weeds.
The driver in the suspect’s car gave a different version of events in the police report. He said they were turning onto Pecos from University when a man yelled at them from another car. The driver said the suspect told him to stop their car.
According to the driver’s statement, the 19-year-old went at the suspect in an aggressive manner and the two got into a fight. When the fight ended, the teen pulled the key from his pocket and he told the suspect, “I know I owe you money. Here, take my car until I am able to pay you.”
The report states that it took nearly 40 minutes for the alleged victim to call the police for help.
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In the other case, police responded to an alleged fight shortly before noon Sept. 22 at the 31-year-old suspect’s business. The alleged victim, 44, told officers that he had attempted to reach the suspect to retrieve one of his wrenches that he used while he was employed there. The alleged victim had reportedly been harassing employees about his tools, the suspect said.
The alleged victim said he went to the business and that the suspect punched him several times in the face and started to kick him while he fell to the ground, the report states. The alleged victim called police when he was able to get away.
Police reported that the alleged victim suffered slight injuries to his nose and a bump on the right side of his face. He refused to be taken to the hospital at first but went there later.
The suspect said the alleged victim became belligerent when he handed him a wrench. He said his former employee demanded other tools that he claimed were his.
The suspect said to police that his former employee then threw a punch but missed. The suspect said that he thought the alleged victim was going to hit again, so he struck him back in self-defense.
The alleged victim said he planned to file charges independently of the police, documents state.
The trial was scheduled for earlier this week, but Magistrate Judge Chris Najar dismissed the case at the request of the suspect’s lawyer, Michael Aragon. Najar’s ruling stated that the alleged victim can’t refile the case.
Aragon said the 44-year-old alleged victim hadn’t met the requirements of discovery — the process in which information is provided to the other side in a criminal case. And he said the alleged victim couldn’t file as a private citizen without the assistance of a special prosecutor assigned by the district attorney’s office.
The alleged victim had no attorney. A letter from Ulibarri to the alleged victim on Oct. 24 stated that Magistrate Court rules allow private citizen prosecutions.
“If a private citizen wants their own attorney to prosecute their case, we will appoint an attorney as a special prosecutor at the expense of the private citizen,” Ulibarri wrote.
But at Tuesday’s hearing, Aragon, the suspect’s public defender, pointed to Ulibarri’s letter, saying it indicated that the alleged victim had to have a special prosecutor.
The judge looked over the rule, saying the attorney was right. His decision to dismiss, in part, cited the rule on private citizen prosecutions.
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In a later interview, Ulibarri said Aragon “pulled the wool” over the judge’s eyes.
“I’m a little upset that an attorney would go in there and say this. He is absolutely wrong,” Ulibarri said. “It’s an absurd argument, and it’s not justice.”
He said his letter clearly stated that private citizen prosecutions are allowed and indicated that a special prosecutor is an option. If a citizen wants an attorney, the citizen must get that attorney approved with the district attorney’s office, Ulibarri said, but he couldn’t remember an instance in which his office rejected a citizen’s choice for an attorney.
Ulibarri’s letter reflects the part of Magistrate Court rules that allow for citizen prosecutions.
The court’s rules also give a judge the power to delay a trial if a party hasn’t provided materials or witnesses deemed relevant by the court.
Aragon said the judge’s dismissal reflects all three of his objections: that the alleged victim didn’t have a special prosecutor, that he hadn’t provided information to the defendant and that there wasn’t a jury trial as requested.
Aragon agreed with Ulibarri’s interpretation of the rule, but he said he disagreed that private citizens should prosecute crimes on their own. He said it was unfair because richer people have greater means to pay for attorneys.
“On principle, I think at a minimum an officer should prosecute the case,” he said.
Aragon said it is much more common to see private citizens file criminal complaints in Las Vegas than the previous jurisdiction where he worked — Tucumcari — where he said he never encountered such a situation.
Aragon said he wasn’t sure why that was the case, possibly because the authorities in Las Vegas steer people toward the option of private prosecutions.
He also said many people may see filing a private criminal complaint more desirable than the civil route because the court fees are much lower.
In the case involving the alleged teen victim, Ulibarri said the investigation continues. He said everything about that report is being reviewed and that his office would likely ask for taped statements from those involved. He said there are indications that a crime may have taken place.
Ulibarri said it’s more likely for the state to prosecute if the police turn in information, as was the case with the teen. But he said the state didn’t do so in the case involving the alleged 44-year-old victim because he decided to prosecute on his own. If the 44-year-old hadn’t decided to prosecute privately, the district attorney’s office probably would have been involved, Ulibarri said.
He said he feels the public needs to be educated in such matters.
“I’ve been wanting to hold a community workshop,” he said.