Barret v. Commonwealth - Subject: When a prosecutor brings extra charges after the Defense has successfully exercised its constitutional right to appeal one charge is that prosecutorial vindictiveness?
The Defendant succeeded in an appeal but the charge was returned for prosecution on a lesser included charge. Prior to the second trial the prosecution threatened to bring more charges if there was a not guilty plea. Thereafter, the prosecution brought the extra charge when negotiations for a plea were unsuccessful. Defendant moved to quash the indictment as punishment for the fact that she had succeeded in her exercise of her constitutional right to appeal.
The Court finds no direct connection between the successful appeal and the bringing of the new charge. Without a direct connection, there is no presumption of prosecutorial vindictiveness. Absent a presumption the Defendant must prove vindictiveness. The fact that the subsequent charge was not brought prior to the successful appeal is not proof that the prosecution is vindictive.
Comment: As far as it goes, this opinion appears correct. While we all know that but for the successful appeal the subsequent charge would never have been brought, it was not brought to punish the appeal. It was brought to punish the Defendant for exercising her constitutional right to plead not guilty.
This is what the judge in the Massachusetts federal sentencing guidelines case called “charge bargaining.” Most of the time this is accomplished by charging more felonies (and/or misdemeanors) than the prosecution is really interested in pursuing so that charges can be dropped in exchange for a guilty plea. A bright prosecutor can make his job easier by arranging several more charges than he ever intends to prove (although all colorable) and dropping all but one or two in order to get a plea; this is the intelligent way of doing charge bargaining because the Defendant is able to see what she is getting from the bargain - the more charges dropped the better.
The way it was done in this case is more heavy-handed, showing some lack of finesse. While not unheard of, when a prosecutor threatens to raise new charges unless you plead to the one it seldom makes the negotiation easier. To begin with it makes it harder to explain to the Defendant. A Defendant is almost always extremely focused on what is currently charged. Explaining to her that she must plead guilty or potential new charges might be filed often does not pierce this concentration and decisions are mostly made solely pursuant to the perceived danger rather than the potential danger. As well, the majority of the time I have seen this threat put out there it has not been followed through on (albeit, probably because the prosecutor is satisfied with the slamming my client got in the trial of the initial charge). So it can be hard to advise the client on the probability of the prosecutor following through on the threat.
Even on those occasions when I am absolutely convinced that the prosecutor will bring extra charges trying to get the client to understand is painful. If charges are going away the client gets it; if you are keeping charges from being brought the client only sees the charge in front of her and the fact that you are not getting that charge reduced or making it go away. More than once I’ve been told at this point how worthless I am and that a “paid attorney” would have done a better job. Once, having maneuvered to keep at least four new, easily-provable felonies from coming into play, my client’s aunt proclaimed in a stage whisper as she left the courtroom, “He’s worthless. He didn’t do anything for you.” Ggggrrrrrr.
This, of course, is a discussion of the tactics of charge bargaining, not the morality. While properly done charge bargaining makes life easier for everyone in the courtroom - the prosecutor, the Defense counsel, and probably even the Defendant - at its core it is an immoral practice. It denies the system the ability to function in the manner it is supposed to operate. The prosecutor should bring the charge(s) he believes appropriate from the beginning. Bringing charges without the intent to prosecute or threatening new charges that the prosecution had not initially intended to file is done with the sole purpose of pressuring the Defendant so that he will not exercise his right to put the prosecution to its proof. It’s wrong but courts allow it and even if they tried to intervene it would be extremely hard for a court to enforce a ban on charge bargaining. After all, how will the court know if a prosecutor is dropping a charge because he no longer believes it viable or because the Defendant will plead to one if the other is dropped? The judge may have a strong suspicion but unless the court is willing to engage in presumptions following certain activity (as this case illustrates it is not) there is no practical way of knowing. And, again, nobody really wants it to go away because well done charge bargaining makes the system run smoother.