Prosecutorial vindictiveness

Prosecutorial vindictiveness is retaliation by the prosecutor against the defendant for the defendant exercising a right.

It is “ ‘patently unconstitutional’ ” and a basic violation of due process to punish defendants for exercising a right that the law plainly accords them. (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) Thus, in certain cases in which defendants face a risk of greater punishment apparently as a result of their exercise of rights, the United States Supreme Court has found it necessary to “presume” an improper vindictive motive (United States v. Goodwin (1982) 457 U.S. 368, 373 (Goodwin ) ), thereby placing a “ ‘heavy burden’ ” on the prosecution to dispel the appearance of vindictiveness as well as actual vindictiveness. (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371.) The United States Supreme Court and the California Supreme Court have concluded that the presumption of vindictive prosecution is unwarranted in a pretrial setting. (Goodwin, supra, 457 U.S. at pp. 381-383 [deciding not to plead guilty and requesting a jury is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified]; People v. Grimes (2016) 1 Cal.5th 698, 736 (Grimes ) [same].) The Goodwin court stated: “There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized.” (Goodwin, at p. 381.) “To presume that every case is complete at the time an initial charge is filed, however, is to presume that every prosecutor is infallible—an assumption that would ignore the practical restraints imposed by often limited prosecutorial resources.” (Id. at p. 382, fn. 14.) Thus, “ ‘[i]n the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or ... the potential penalty. [Citations.] Rather, the defendant must “prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do.” ’ ” (Grimes, supra, 1 Cal.5th at p. 736.) Because Vanderwood is challenging the prosecutor's pretrial action to amend the felony complaint, no presumption of vindictiveness is present, and he has the burden to provide evidence of vindictive prosecution. Vanderwood has not cited any evidence in the record that vindictiveness motivated the prosecutor to add the torture charge. Accordingly, his claim of vindictive prosecution fails. In any event, as discussed ante, in part I, the evidence warranted the torture charge. Thus, Vanderwood's claim that the prosecution “deputies should have known the charge added did not fit the facts of the case” is untenable.

Cases

Supreme Court of the United States cases

North Carolina v. Pearce (1969) 395 U.S. 711 [89 S.Ct. 207, 223 L.Ed.2d 656]

Facts

Holding

Reasoning

Notable quotes

Blackledge v. Perry (1974) 417 U.S. 21 [94 S.Ct. 2098, 40 L.Ed.2d 628]

Facts

Appellant was charged with misdemeanor assault. He requested a trial de novo per North Carolina law. He was then charged with felony assault.

Holding

Reasoning

Notable quotes

United States v. Goodwin (1982) 457 U.S. 368 [102 S.Ct. 2485, 73 L.Ed.2d 74].

Facts

Holding

Reasoning

Notable quotes

The government violates a defendant's right to due process of law if it files charges to penalize her for exercising a protected statutory or constitutional right.

Federal cases

United States v. Ruesga-Martinez (1976) 534 F.2d 1367

Facts

The defendant was charged with a misdemeanor violation of 8 U.S.C. § 1325, unlawfully entering the United States. The defendant refused to waive the right to trial by jury or the right to be tried by a district judge. The defendant was then charged with felony violations of 8 U.S.C. §§ 1325 and 1326. There were no new facts that were unknown at the time of the original charging.

Holding

When a defendant is re-charged with more severe offenses and no new facts justify the new charges, prosecutorial vindictiveness is presumed, violtaing the defendant's Due Process rights.

Notable quotes

"[W]when the prosecution has occasion to reindict the accused because the accused has exercised some procedural right, the prosecution bears a heavy burden of proving that any increase in the severity of the alleged charges was not motivated by a vindictive motive."(United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1369.)

"Pearce and Blackledge seek to reduce or eliminate apprehension on the part of an accused that he may be subjected to retaliatory or vindictive punishment by the prosecution only for attempting to exercise his procedural rights. Hence, the mere appearance of vindictiveness is enough to place the burden on the prosecution. . . . [T]he ensuing increase in the severity of the charges against him created a sufficient appearance of vindictiveness to bring the principles of Pearce and Blackledge into application." (United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1369.)

"Pearce and Blackledge apply regardless of whether the accused asserts a constitutional right, a common law right, or a statutory right." (United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1370.)

"[I]n view of the clear mandate of Pearce and Blackledge, we find no merit in [the] suggestion that the power of the prosecution to adjust the charges against an accused at will inheres in its power to engage in plea bargaining. ((United States v. Ruesga-Martinez (1976) 534 F.2d 1367, 1370–1371.)

United States v. Grove (9th Cir. 1978) 571 F.2d 450 Establishing a presumption of vindictiveness does not require “that the prosecutor acted in bad faith” or that he “maliciously sought” the new charges indictment.(United States v. Grove (9th Cir. 1978) 571 F.2d 450, 453.)

United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164

Prosecutorial vindictiveness may be established by direct evidence of the prosecutor's punitive motivation. (United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1168)

If additional charges “were filed because [she] exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.” (United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1168)

"[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.” (United States v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1169)

The prosecution must show that the additional charges “did not stem from a vindictive motive, or [were] justified by independent reasons or intervening circumstances that dispel the appearance of vindictiveness.” Gallegos-Curiel, 681 F.2d at 1168.

United States v. Jenkins (2007) 504 F.3d 694

Facts

The defendant was caught twice trying to smuggle aliens across the border, but not charged. The defendant was then caught crossing the border with drugs and charged with importation of marijuana. At trial, the defendant testified in her own defense. During jury deliberations, the government added the previously uncharged alien smuggling counts. The government conceded it had sufficient evidence to charge the alien smuggling before the defendant's trial testimony.

Holding

Notable Quotes

The defendant need only demonstrate a "reasonable likelihood" that the charges were added for exercising a right. (United States v. Jenkins (2007) 504 F.3d 694, 700.)

"The mere appearance of prosecutorial vindictiveness suffices to place the burden on the government because the doctrine of vindictive prosecution 'seeks[s] to reduce or eliminate apprehension on the part of an accused' that she may be punished for exercising her rights." (United States v. Jenkins (2007) 504 F.3d 694, 700, quoting United States v. Ruesga-Martinez (9th Cir. 1976) 534 F.2d 1367, 1369.)

The new charges do not have to "arise out of the same nucleus of operative fact". (United States v. Jenkins (2007) 504 F.3d 694, 700–701.)

But see United States v. Jenkins (9th Cir. 2008) 518 F.3d 722 (dis. opn. of Kozinski, J.).)