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Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – increased charge following hung jury

State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330
For Johnson: Russell D. Bohach

Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury.

Holding: No presumption of prosecutorial vindictiveness applies to an increase in charges following mistrial due to hung jury.

Johnson went to trial on a single count of first degree sexual assault, after rejecting an original offer to plead to second degree. The jury hung, and mistrial was declared. The prosecutor then added a count of first degree sexual assault and a count of burglary, arising out of the same event. She also offered to allow Johnson to plead to one of the assaults, with the other counts dismissed, with sentencing consideration (a plea, that is, to the first-trial charge). Johnson rejected the offer; he unsuccessfully challenged the added charges on vindictiveness grounds, lost both that argument and the trial, and this appeal results. The first question is whether there’s a realistic likelihood – a presumption – of prosecutorial vindictiveness. It’s settled that (in general) a presumption of vindictiveness arises when charges are increased following successful appeal; and that no presumption apples to an increase in a pretrial setting. This case is unique, because “no previous Wisconsin case has examined a claim of vindictiveness arising before a defendant’s successful appeal.” ¶19. To make a long story very short, the court basically discerns that mistrial falls into the pretrial rather than successful-appeal category. Merely insisting on a retrial following hung jury is not an assertion of a “protected right,” in that “retrial was necessary because of the jury’s inability to reach a verdict, not because of the exercise of any right by the defendant.” ¶38. Thus, the rationale of Bordenkircher v. Hayes, 434 U.S. 357 (1977), a plea bargaining case which permits a prosecutor to threaten to bring a more serious charge unless the defendant pleads guilty, applies. There is, it should be noted, reason to see the holding as limited to hung-jury mistrials: the court stresses that the jury’s inability to reach a verdict is distinct from the defendant’s exercise of some right, and the court takes pain to distinguish the results in other cases which “involved mistrials granted upon the defendant’s motion, to preserve fair trial rights.” ¶38 and id., n. 5.

Issue2: Whether the defendant showed that the increase in the charge was due to actual vindictiveness.

Holding: Defendant did not establish actual vindictiveness, and there was, additionally, evidence of non-vindictive intent.

The defendant may show actual vindictiveness, where no presumption attaches. ¶47. The fact that the new charges were not based on new information didn’t establish actual vindictiveness. Given the prosecutor’s “great discretion in charging decisions … the prosecutor’s belief that sufficient evidence exists to support a conviction of a new charge provides justification for the decision to file additional charges.” ¶50. And, the offer to dismiss the new charges for a plea to the first-trial charge was sanctioned by Bordenkircher. Finally, the prosecutor’s express desire to induce a plea for the purpose of having young witnesses spared the trauma of testifying “suggests a non-vindictive reason.” ¶52.


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