                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON
                               April 12, 2000 Session

     STATE OF TENNESSEE v. DONALD L. CULBREATH and GENNA
                           McCALLIE

                  Appeal By Permission from the Court of Criminal Appeals
                             Criminal Court for Shelby County
                 Nos. 96-13497, 97-00667, -72, -73, -75 L.T. Lafferty, Judge



                    No. W1999-01553-SC-R11-CD - Filed October 20, 2000




We granted this appeal to determine: 1) whether the trial court abused its discretion by disqualifying
a District Attorney General and his staff due to the use of a private attorney to assist the prosecution
where the private attorney received substantial compensation from a private, special interest group
and 2) whether the trial court properly dismissed the indictments based on a violation of due process.
The Court of Criminal Appeals affirmed the trial court’s ruling regarding disqualification but held
that the appropriate remedy for the due process violation was suppression of the evidence and not
dismissal of the indictments. We agree that the prosecution’s appointment and use of a private
attorney who received substantial compensation from a private, special interest group created a
conflict of interest and an appearance of impropriety that required disqualification of the District
Attorney General’s office. We further conclude that the prosecutor’s use of the private attorney
under the circumstances of this case violated the defendants’ right to due process under the
Tennessee Constitution and required dismissal of the indictments. Accordingly, the judgment of the
Court of Criminal Appeals is reversed in part and the judgment of the trial court is reinstated.

  Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                Reversed In Part; Judgment of the Trial Court Reinstated.

E. RILEY ANDERSON, C. J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR. and
JANICE M. HOLDER , JJ., joined. WILLIAM M. BARKER, J., filed a concurring opinion. FRANK F.
DROWOTA , III, not participating.

Frierson M. Graves, Jr., and Thomas E. Hansom, Memphis, Tennessee, for the defendants, Donald
Culbreath and Genna McCallie.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T.
Ryan, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy P.
Weirich and Jennifer S. Nichols, Assistant District Attorneys General, for the State of Tennessee.
                                                     OPINION

                                                 BACKGROUND

       The trial court conducted an extensive evidentiary hearing on the issues and set forth detailed
findings of fact and conclusions of law in a 22-page order. We shall summarize the relevant events
based on the entire record, as well as the trial court’s findings.

       In December of 1995, Larry Parrish, an attorney in Memphis, Tennessee, was approached
by the executive director of an organization known as the Citizens for Community Values, Inc.,
(“CCV”), who asked him to meet with two Shelby County assistant district attorneys, Amy Weirich
and Jennifer Nichols, regarding the prosecution of obscenity cases. Parrish, a former Assistant
United States Attorney, was experienced in the prosecution of obscenity cases.

        Parrish met with Weirich and Nichols for three hours. When they asked for his help, Parrish
replied, “I haven’t been asked.” On the following day, then-Shelby County District Attorney John
Pierotti contacted Parrish and requested his assistance. Pierotti told Parrish that his office could not
pay for Parrish’s services but could reimburse expenses. When Parrish asked if he could be
compensated by outside sources, Pierotti agreed. According to Parrish, “that’s how it got started.”

        Thereafter, Parrish conducted an extensive investigation into sexually-oriented businesses
in Shelby County, Tennessee, with the assistance of two assistant district attorneys, an investigator
from the District Attorney General’s office, and investigators from the Tennessee Bureau of
Investigation and the Department of Revenue. Parrish met with these employees in his law firm
office on a daily basis for several months. Beginning in January of 1996, the group’s investigation
consisted of conducting surveillance of sexually-oriented establishments and taking statements from
a large number of witnesses. Although Parrish testified that it was “understood” that General Pierotti
had the ultimate decision-making authority, there were no procedures or guidelines establishing
Parrish’s specific duties or Pierotti’s oversight.

        The initial agreement called for the District Attorney General’s office to pay for expenses
incurred during the investigation, but Parrish began to pay expenses from contributions by CCV and
numerous members of the community. Parrish testified that CCV received a monthly statement
itemizing his time and expenses, just as any other client. Parrish’s expenses included the use of
court reporters to take statements,1 a TV/VCR, copying and courier expenses, video monitors,
special telephone lines, and various office supplies and equipment. The expenses were paid from
CCV contributions. From December of 1995 to July of 1996, Parrish accumulated over 2,400 hours
in the investigation. His fee was approximately $212,000 and expenses totaled over $34,000.



         1
            Parrish preferred the more expensive practice of using court reporters for this purpose, whereas the practice
of the District Attorney General’s office w as simply to use tape recorders.

                                                          -2-
        On July 11, 1996, Parrish was “appointed” as a “Special Assistant District Attorney” by
General Pierotti and was administered an oath of office for the first time. On the same day, a civil
nuisance suit seeking injunctive relief against several sexually-oriented businesses was filed in
Shelby County Chancery Court. The civil complaint was signed by Parrish as “Special Assistant
District Attorney General,” District Attorney General Pierotti, and two assistant district attorneys.

        At Pierotti’s request, Parrish was appointed as additional counsel in matters relating to the
civil cases in chancery court by Governor Don Sundquist on August 30, 1996. The letter of
appointment noted that Parrish would not be compensated by the State, that Parrish would disclose
the amount and source of any compensation received, that such information was a matter of public
record, and that Parrish was under the direct supervision of General Pierotti.

       When Pierotti resigned, effective November 1, 1996, his successor, William Gibbons,
continued to work with Parrish in the investigation and prosecution of sexually-oriented businesses.
In addition to the civil nuisance suit already filed in chancery court, Gibbons sought criminal
indictments from the grand jury. In December of 1996, the grand jury returned an 18-count
indictment against the defendant, Donald L. Culbreath, and a 22-count indictment against the co-
defendant, Genna McCallie.2 On July 31, 1997, the Governor appointed Parrish as additional
counsel in the pending civil cases and the pending criminal indictments.

       The trial court found that over a 19-month period, Parrish received $410,931.87 for his
services from CCV and other private contributors between December of 1995 and July of 1997. Of
this amount, Parrish’s expenses exceeded $100,000.

        The trial court found that Parrish’s substantial involvement in the prosecution of these cases
and his “enormous” compensation from a private, special interest group created a conflict of interest
that required Parrish’s disqualification.3 The trial court also determined that the conflict of interest
created an appearance of impropriety that required disqualification of the District Attorney General
and his office. The trial court concluded that these actions violated the defendants’ right to due
process and dismissed the indictments.

       The Court of Criminal Appeals held that the trial court did not abuse its discretion in
disqualifying Parrish and the entire District Attorney General’s office based on the appearance of
impropriety. The court agreed that the defendants’ right to due process had been violated, but
suggested that the appropriate remedy was suppression of the evidence and not dismissal of the
indictments.

         We granted this appeal to review these important questions.

         2
            The charges a gainst Cu lbreath inc luded ten counts of promoting prostitution, six counts of prostitution, and
two counts of public indecency. The charges against McCallie included ten counts of prom oting pro stitution, six co unts
of prostitution, four co unts of public ind ecency, and two counts o f presenting live obsc ene perform ances.

         3
             The State has not appealed this part of the trial court’s ruling.

                                                            -3-
                                             DISQUALIFICATION

        The State contends that the trial court’s disqualification of the District Attorney General and
his staff was improper because there was no conflict of interest and no appearance of impropriety.
The State argues that the District Attorney maintained control over the prosecution and that the
interests of the prosecution and Parrish were identical. The defendants maintain that the trial court
properly disqualified Parrish and the entire District Attorney General’s office.

                                                Standard of Review

        In determining whether to disqualify a prosecutor in a criminal case, the trial court must
determine whether there is an actual conflict of interest, which includes any circumstances in which
an attorney cannot exercise his or her independent professional judgment free of “compromising
interests and loyalties.” See Tenn. R. Sup. Ct. 8, EC 5-1. If there is no actual conflict of interest,
the court must nonetheless consider whether conduct has created an appearance of impropriety. See
Tenn. R. Sup. Ct. 8, EC 9-1, 9-6.

         If disqualification is required under either theory, the trial court must also determine whether
the conflict of interest or appearance of impropriety requires disqualification of the entire District
Attorney General’s office. See State v. Tate, 925 S.W.2d 548, 550 (Tenn. Crim. App. 1995). The
determination of whether to disqualify the office of the District Attorney General in a criminal case
rests within the discretion of the trial court. Appellate review of such a ruling is limited to whether
the trial court has abused its discretion. See id. at 550.

                                              The Role of Prosecutor

        A District Attorney General is an elected constitutional officer whose function is to prosecute
criminal offenses in his or her circuit or district. Ramsey v. Town of Oliver Springs, 998 S.W.2d
207, 209 (Tenn. 1999); Tenn. Const. art. VI, § 5. The District Attorney General “[s]hall prosecute
in the courts of the district all violations of the state criminal statutes and perform all prosecutorial
functions attendant thereto . . . .” Tenn. Code Ann. § 8-7-103(1) (1993 and Supp. 1999). The
prosecutor’s discretion to seek a warrant, presentment, information, or indictment is extremely broad
and subject only to certain constitutional restraints. Ramsey, 998 S.W.2d at 209.

       The proper role of the prosecutor in our criminal justice system has been addressed on
numerous occasions by various courts and ethical rules.4 As early as 1816, the Tennessee Supreme
Court said that a prosecutor



         4
            See Fred Zachar ias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice, 44
Vand. L. Rev. 4 5 (1991 ); Georg e T. Fram pton, Jr., Some Practical and Ethical Problems of Prosecuting Public O fficials,
36 M d. L. Rev . 5 (1976 ).

                                                           -4-
       is to judge between the people and the government; he is to be the safeguard of the
       one and the advocate of the rights of the other; he ought not to suffer the innocent to
       be oppressed or vexatiously harassed any more than those who deserve prosecution
       to escape; he is to pursue guilt; he is to protect innocence; he is to judge of
       circumstances, and, according to their true complexion, to combine the public
       welfare and the safety of the citizens, preserving both and not impairing either.


Fout v. State, 4 Tenn. (3 Haywood) 98 (1816). The United States Supreme Court has said that a
prosecutor:

       is the representative not of an ordinary party to a controversy, but of a sovereignty
       whose obligation to govern impartially is as compelling as its obligation to govern
       at all; and whose interest, therefore, in a criminal prosecution is not that it shall win
       a case, but that justice shall be done. As such, he is in a peculiar and very definite
       sense the servant of the law the twofold aim of which is that guilt shall not escape or
       innocence suffer. He may prosecute with earnestness and vigor – indeed, he should
       do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.


Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314 (1935).

       These principles are likewise embodied within the ethical considerations of the Model Code
of Professional Responsibility governing the conduct of prosecutors:

       The responsibility of a public prosecutor differs from that of the usual advocate; his
       duty is to seek justice, not merely to convict. This special duty exists because: (1)
       the prosecutor represents the sovereign and therefore should use restraint in the
       discretionary exercise of governmental powers, such as in the selection of cases to
       prosecute; (2) during trial the prosecutor is not only an advocate but also may make
       decisions normally made by an individual client, and those affecting the public
       interest should be fair to all; and (3) in our system of criminal justice the accused is
       to be given the benefit of all reasonable doubts.


Tenn. R. Sup. Ct. 8, EC 7-13; see ABA Standards for Criminal Justice, Standard 3-1.1(c) (1979)
(“[T]he duty of the prosecutor is to seek justice, not merely to convict.”). The Model Code also
discusses the differences in the role of the prosecutor from that of the private attorney:

       With respect to evidence and witnesses, the prosecutor has responsibilities different
       from those of a lawyer in private practice; the prosecutor should make timely
       disclosure to the defense of available evidence, known to the prosecutor, that tends
       to negate the guilt of the accused, mitigate the degree of the offense, or reduce the
       punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence

                                                 -5-
         merely because the prosecutor believes it will damage the prosecutor’s case or aid the
         accused.


Tenn. R. Sup. Ct. 8, EC 7-13.

        In short, public prosecutors hold a unique office in our criminal justice system. Contrary to
the State’s contention on appeal, prosecutors are expected to be impartial in the sense that they must
seek the truth and not merely obtain convictions. They are also to be impartial in the sense that
charging decisions should be based upon the evidence, without discrimination or bias for or against
any groups or individuals. Yet, at the same time, they are expected to prosecute criminal offenses
with zeal and vigor within the bounds of the law and professional conduct. See Berger, 295 U.S. at
88, 55 S. Ct. at 633.


                                                Private Prosecutors

        Under English common law, the criminal justice system required the victim of a criminal
offense, or the victim’s family, to initiate and pursue criminal proceedings. See State v. Peterson,
218 N.W.2d 367, 369 (Wis. 1928). Although the development and role of the public prosecutor in
the United States over the past several centuries has largely supplanted the English common law in
this regard, many jurisdictions still allow a private attorney to be retained or appointed to assist in
the prosecution of a criminal case. See John D. Bessler, The Public Interest and the
Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 515 (1994).

        Numerous courts and commentators have recognized, however, that the use of a private
attorney in the prosecution of a criminal case may present ethical dilemmas, including conflicts of
interest. Bessler, 47 Ark. L. Rev. at 548-49 (and cases cited therein). The private attorney must
comply with the standards and ethical responsibilities for a public prosecutor – to not merely seek
convictions but also to pursue justice. See Young v. United States ex rel. Vuitton Et Fils S.A., 481
U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987). At the same time, however, the private
attorney’s ethical duty “both to client and to the legal system, is to represent the client zealously
within the bounds of the law, which include Disciplinary Rules and enforceable professional
regulations.” Tenn. R. Sup. Ct. 8, EC 7-1.5

        In Tennessee, there are two statutes pertaining to the prosecutor’s use of additional counsel.
One, which the parties agree is not applicable in this case, permits the victim of a crime or the
victim’s family to retain an attorney to assist in the trial of a criminal case under the supervision of
the District Attorney General. Tenn. Code Ann. § 8-7-401 (Supp. 1999). The second, which the
parties contend is applicable here, provides for the employment of additional counsel:


         5
            Indeed, this tension in creating dual roles has led several courts to hold that the use of a private attorney as
a prosecu tor violates d ue proc ess. See Bessler, 47 Ark. L. Rev. at 548-49.

                                                            -6-
         Employment of additional counsel.— In all cases where the interest of the state
         requires, in the judgment of the governor and attorney general and reporter,
         additional counsel to the attorney general and reporter or district attorney general, the
         governor shall employ such counsel, who shall be paid such compensation for
         services as the governor, secretary of state, and attorney general and reporter may
         deem just, the same to be paid out of any money in the treasury not otherwise
         appropriated, upon the certificate of such officers certifying the amount to the
         commissioner of finance and administration.


Tenn. Code Ann. § 8-6-106 (1993).

        Although the statutory provisions in Tennessee, similar to the laws in other jurisdictions,
purport to address the potential conflicts by requiring that the private attorney work under the
supervision of the District Attorney or be compensated by the state, they do not foreclose the risk
that a conflict of interest, or appearance of such a conflict, may exist under the circumstances of a
particular case. For example, there is a conflict of interest whenever an attorney is retained to assist
the prosecution and acquires a direct financial interest in the proceeding. See State v. Eldridge, 951
S.W.2d 775, 781 (Tenn. Crim. App. 1997) (attorney assisted prosecution but also represented victim
in a corresponding civil action). Moreover, an actual conflict or an apparent conflict may exist
anytime a lawyer cannot exercise his or her independent professional judgment free of
“compromising influences and loyalties.” See Tate, 925 S.W.2d at 534 (district attorney formerly
served as judge presiding over defendant’s case); Tenn. R. Sup. Ct. 8, EC 5-1.6 Accordingly, a court
must review the facts and circumstances of each case with these standards in mind.

        In this case, Parrish’s involvement began without any formal appointment by the Governor
and no oath of office, and it continued in this manner for eight months from December of 1995 to
July 1996. Parrish was compensated for his services by a private, special interest group that he billed
each month. During this time, Parrish spearheaded a comprehensive investigation with a “staff” that
included two assistant district attorneys and three investigators. There was no specific agreement
or arrangement as to Parrish’s role, the extent of his participation, or the extent of District Attorney
General Pierotti’s supervision – for all practical purposes, there appeared to be little supervision or
control by Pierotti.

        In July of 1996, a civil nuisance suit seeking injunctive relief was filed by Parrish and the
District Attorney General’s office against the defendants based on the evidence from Parrish’s
investigation. Although General Pierotti purportedly appointed Parrish as a special prosecutor on

         6
             See also Tenn. R. Sup. Ct. 8, DR 5-105 (a lawyer should refuse to accept or continue employment if the
interest of another client may impair the exercise of “independent judgment”); Tenn. R. Sup. Ct. 8, EC 5-2 (a lawyer
should not accept employment if there is a reasonable probability that personal interest will “affect adversely the advice
to be giv en or services rend ered the prospe ctive client”); Tenn. R. Su p. Ct. 8, EC 5-14 (“independ ent professional
judgment” is comprom ised when a lawyer is asked to represent two or mo re clients with differing interests).

                                                           -7-
the same day the suit was filed, there was (and is) no constitutional or statutory authority for such
an appointment to be made. Moreover, although Parrish was later appointed as additional counsel
by the Governor, there was (and is) no legal authority allowing Parrish to be compensated on an
hourly basis by a private, special interest group. See Tenn. Code Ann. § 8-6-106 (1993) (counsel
may be compensated from the state treasury). Indeed, the State now concedes that Parrish’s
appointment and participation was “problematic” inasmuch as there was no statutory authority for
it in this manner.

       Accordingly, we agree with the lower courts that Parrish had an actual conflict of interest
under the circumstances of this case. He was privately compensated by a special interest group and
thus owed a duty of loyalty to that group; at the same time, he was serving in the role of public
prosecutor and owed the duty of loyalty attendant to that office. Moreover, because Parrish was
compensated on an hourly basis, the reality is that he acquired a direct financial interest in the
duration and scope of the ongoing prosecution. In short, the dual role was such that Parrish could
not exercise his independent professional judgment free of “compromising influences and loyalties.”
See Tenn. R. Sup. Ct. 8, EC 5-1.

        The State contends that there was no conflict of interest because Parrish and the prosecution
had the same interest – eradicating sexually-oriented businesses. The prosecutor’s discretion about
whom to prosecute and to what extent they should be prosecuted, however, is vast and to a large
degree, not subject to meaningful review. See Ramsey, 998 S.W.2d at 209; State v. Superior Oil,
Inc., 875 S.W.2d 658, 660 (Tenn. 1994) (“prosecutorial discretion in the charging process is very
broad”). Moreover, as the United States Supreme Court has recognized, the prosecutor’s discretion
goes beyond initial charging decisions:

        A prosecutor exercises considerable discretion in matters such as the determination
        of which persons should be targets of investigation, what methods of investigation
        should be used, what information will be sought as evidence, which persons should
        be charged with what offenses, which persons should be utilized as witnesses,
        whether to enter into plea bargains and the terms on which they will be established,
        and whether any individuals should be granted immunity. These decisions, critical
        to the conduct of a prosecution, are all made outside the supervision of a court.


Young, 481 U.S. at 807, 107 S. Ct. at 2137. In sum, the State’s argument misses the point that the
foundation for the exercise of the vast prosecutorial discretion is freedom from conflict of interest
and fidelity to the public interest.

        Finally, we agree that the trial court did not abuse its discretion in disqualifying the District
Attorney General’s staff based on the appearance of impropriety created by Parrish’s conflict of
interest. As one commentator has said:

        To ensure and maintain public confidence in the integrity of the government, public
        officials, including prosecutors, must act impartially and responsibly. Government

                                                  -8-
       officials must be held to high ethical standards to make certain their activities are
       conducted in the public’s interest. Furthermore, ‘governments have a responsibility
       to the public to avoid even the appearance of impropriety and to act to reduce the
       opportunities and incentives for unethical behavior by their officials and employees.’
       This is true of the prosecuting attorney because ‘an appearance of impropriety on the
       part of a government attorney will inevitably harm not only the individual attorney,
       but also the entire system of government that allows such improprieties to take
       place.’


Roberta K. Flowers, What You See Is What You Get: Applying the Appearance of Impropriety
Standard to Prosecutors, 63 Mo. L. Rev. 60, 68 (1998) (citations omitted).

        Contrary to the State’s argument, the record supports the trial court’s finding that Parrish
played a substantial role in the prosecution and that there was “a blurring between an actual conflict
of interest and the appearance of impropriety arising in conflicts of interest.” Despite Parrish’s
extensive contact with the office of the District Attorney General, including daily working
involvement with two assistant district attorneys and several investigators, there were no guidelines
as to Parrish’s duties and no efforts to screen Parrish from other members of the District Attorney
General’s office. Both District Attorney General Pierotti and his successor, District Attorney
General Gibbons, knew that Parrish was being compensated by a private, special interest group.
Moreover, the trial court found that on one occasion, Pierotti, Gibbons, and Parrish attended a fund-
raiser which “stressed the necessity to continue on with the prosecution of criminal activity in topless
clubs and the need for continued donations to pursue these goals.”

        We further agree with the trial court’s finding that Parrish’s extensive involvement had a
substantial impact on the prosecution. Although the State argues that the investigation into sexually-
oriented businesses preceded Parrish’s involvement, it was the investigation led by Parrish that
resulted in the filing of a civil nuisance suit seeking injunctive relief. Moreover, when District
Attorney Gibbons took office, he not only was aware of Parrish’s investigation but also made the
decision to seek criminal indictments against the defendants. Accordingly, we conclude that
Parrish’s conflict of interest tainted the entire prosecution and that the trial court did not abuse its
discretion in disqualifying Parrish and the District Attorney General and his office.

                                 DISMISSAL OF INDICTMENT

        The defendant argues that the Court of Criminal Appeals erred in reinstating the indictments
that had been dismissed by the trial court. The State maintains that neither dismissal of the
indictment nor suppression of the evidence – a remedy suggested by the Court of Criminal Appeals
– is appropriate under the facts of this case.

          We initially observe that dismissal of an otherwise valid indictment returned by a grand jury
is a little-used remedy for prosecutorial misconduct. See United States v. Williams, 504 U.S. 36,
54, 112 S. Ct. 1735, 1746, 118 L. Ed. 2d 352 (1992). It may be appropriate, however, where

                                                  -9-
prosecutorial misconduct denies a defendant the constitutional right to due process. See United
States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir. 1986); People v. Torres, 613 N.E.2d 338, 340 (Ill.
App. 1993). Moreover, dismissal of an indictment may be appropriate under a court’s general
supervisory authority where prosecutorial misconduct, while short of constitutional error, has
prejudiced a defendant or affected the charging decision by the grand jury. Bank of Nova Scotia v.
United States, 487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988).

        A citizen has the right to due process of law under the Fourteenth Amendment to the United
States Constitution and under the “law of the land” provision of article I, section 8 of the Tennessee
Constitution. As we have often observed, “United States Supreme Court interpretations of the due
process clauses of the United States Constitution only establish a minimum level of protection, and
this Court, as final arbiter of the Tennessee Constitution, is always free to expand the minimum level
of protection mandated by the federal constitution.” Burford v. State, 845 S.W.2d 204, 207 (Tenn.
1992); see also City of White House v. Whitley, 979 S.W.2d 262, 268 (Tenn. 1998) (“Although we
may not restrict the protections afforded by the federal constitution, we may interpret the Tennessee
Constitution to impose higher standards and stronger protections”).

        We have recognized on several occasions that “due process . . . calls for such protections as
the particular situation demands.” Wilson v. Wilson, 984 S.W.2d 898, 902 (Tenn. 1998); Phillips
v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993). In making this determination, a court must
consider three factors:

       (1) the private interest at stake; (2) the risk of erroneous deprivation of the interest
       through the procedures used and the probable value, if any, of additional or substitute
       procedural safeguards; and finally (3) the government’s interest, including the
       function involved and the fiscal and administrative burdens that the additional or
       substitute procedural requirement would entail.

Wilson, 984 S.W.2d at 902.

        In Wilson, we held that due process was not violated when a private attorney who represents
the beneficiary of a court order in a civil case prosecutes a criminal contempt action for a violation
of that order. In analyzing the three relevant factors, we noted that the defendant has a liberty
interest at stake in a contempt action but that the risk of deprivation of that interest was minimal
because it is the trial court – and not the private attorney – who determines whether a contempt
action will proceed. Moreover, the rule governing contempt actions, Tenn. R. Crim. P. 42(b),
provides for extensive judicial oversight and protections that minimize the risks associated with the
involvement of private counsel. Finally, we noted that fiscal and administrative burdens would be
great if contempt actions arising out of court orders in civil cases could be prosecuted only by the
District Attorney General. Wilson, 984 S.W.2d at 903.

        The circumstances of this case warrant the opposite result. The defendants’ liberty interests
are obviously significant, as they have been charged with multiple felony offenses. We also believe,
for the reasons already described, that the risk of erroneous deprivation of these interests, i.e.,

                                                -10-
prejudice to the defendants, stemming from the participation of a private attorney compensated by
a special interest group, is also substantial. In short, the participation of a privately funded
prosecutor rendered the proceedings fundamentally unfair. Finally, unlike Wilson, the fiscal and
administrative burdens are minimal because the District Attorney General and his staff are already
charged with the responsibility of investigating and prosecuting the offenses in question. Indeed,
two assistant district attorneys were directly involved in the investigation of these cases along with
Parrish. Given these factors, we agree with the lower courts that the defendants were denied their
right to due process.

        Although dismissal of an indictment is not a usual remedy, we conclude that dismissal of the
indictment is appropriate in this case.7 In Gill v. State, 134 Tenn. 591, 597 (1915), for example, we
held that dismissal of an indictment would have been the appropriate course of action where a
prosecutor presented charges to a grand jury while at the same time representing the victim’s family
in a corresponding civil action. Similarly, another court has observed that “a dismissal may . . .
preserve fairness to the individual defendant, . . . deter prosecutorial misconduct, or . . . protect
judicial integrity.” Carrasco, 786 F.2d at 1455. Here, the private attorney’s conflict of interest
tainted the entire prosecution of the case well before the charges were presented to the grand jury.
Accordingly, we conclude that the proceedings were inherently improper and that dismissal of the
indictments is the appropriate remedy to redress the constitutional error.

                                                 CONCLUSION

        We conclude that the trial court did not abuse its discretion in disqualifying the District
Attorney General’s office and that the indictments were properly dismissed based on the denial of
the defendants’ right to due process under article I, section 8 of the Tennessee Constitution. Costs
of the appeal are taxed to the State of Tennessee.


                                                                ___________________________________
                                                                E. RILEY ANDERSON, CHIEF JUSTICE




         7
           Given the inherent and pervasive nature of the misconduct, we reject the suppression of evidence remedy
suggested by the C ourt of C riminal A ppeals. Th e conflict o f interest and resulting misconduct permeated the entire
prosecution and rendered the proceedings as a who le fundam entally un fair. Under these circumstances, dismissal of
the indictments, and not suppression of the evidence, is the appropriate remedy.

                                                        -11-
