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Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – Adding New Charges After Postconviction Relief

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness:

¶45 … As Humphrey [v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989)] suggests, the fact that a defendant is facing stiffer charges arising out of a single incident is important because where such is the case, the concern is that the defendant will be discouraged from exercising his or her right to appeal because he or she is afraid the State will retaliate by substituting a more serious charge for the original one on retrial. However, this concern does not come into play where the new charges stem from a separate incident. In that situation, it is not the appeal that opens the door for the second charge. The prosecutor could have brought the charges against the defendant at any time, regardless of whether the defendant chose to appeal his or her conviction in the original case.¶46. Furthermore, in this case, the present prosecutor had new evidence available to him that the earlier prosecutor did not-the testimony of the two alleged victims from the first trial. …

¶47. Contrary to Williams’ assertions, the fact that the present prosecutor made his decision to press charges without actually seeing the witnesses testify is not relevant….¶48. Williams also asserts that the presumption of vindictiveness arises in this case because in July 2000, prior to filing the new charges, the prosecutor informed Williams that if he insisted on going to trial, the State would charge him with the 1990 incidents. It is well established that this conduct does not give rise to a presumption of prosecutorial vindictiveness. …


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