I'm not going to claim that I totally understand California's vindictive prosecution jurisprudence. I know a little bit about the U.S. Supreme Court's precedent in the area, which I generally find pretty lame. But when it comes to California, well, I am quite confident that there are lots and lots of people who know lots more about it than I do. Lots and lots and lots.
But let me reason from first principles.
When a prosecutor first files a misdemeanor charge against someone -- on the theory that's the right charge -- and then, after an appeal (or an acquittal), files a felony charge, well, that seems vindictive to me. Can't do that. We don't want to have prosecutors punish people for exercising their rights.
(Except, of course, for their right to go to trial. We punish people for that all the time. Plea bargaining wouldn't work otherwise. But that's a whole other story.)
So I definitely understand why we don't allow vindictive charges, and how that works in a classic example like the one above.
But let's take this case. There, the prosecutor charges the defendant with a felony (statutory rape) as well as a misdemeanor (contributing to the delinquency of a minor). At the first trial, the jury hangs on both counts. So the prosecutor retries both charges. Clearly not a problem there. At the second trial, the jury hangs on the felony but convicts on the misdemeanor. Defendant is then sentenced pretty heavily on the misdemeanor count -- a year in prison (the maximum) and registration as a sex offender. Having obtained that sentence, the prosecution elects not to retry the felony count, and dismisses it. Fair enough.
But thereafter, the Court of Appeal reverses the misdemeanor conviction, and on remand, the trial court dismisses it for insufficient evidence. So now there's no misdemeanor. At which point the prosecutor refiles the felony charge. The trial court thinks that's okay, but the Court of Appeal reverses. That's vindictive prosecution, the Court of Appeal holds. You thought the felony was too much, and so you dismissed it. You changed your mind only because the defendant was successful. Can't do that.
Which makes internal sense. In a way.
But wait a minute. The reason the prosecutor dismissed the felony was because the dude had already been sentenced to a year in prison and registration as a sex offender. At that point, this was punishment enough. Or at least punishment sufficient not to make it worth it to try a third time on the felony charge (with the consequent resource drain) and putting the victim through yet another trial.
But I totally understand the prosecutor's thought process here, and don't think I understand (or at least don't appreciate) why it's not legitimate. Once the defendant's conviction gets reversed, and he's going to be totally unpunished for his offense, the calculus now radically changes. It's not that we hate the guy for beating us in the Court of Appeal. It's just that a third trial wasn't worth it compared to the then-preexisting punishment. An extra year or two in prison on a felony count wasn't worth a speculative third trial. But once that sentence goes away, well, at that point, it's totally worth it. Because otherwise, absent the felony charge, you've got a dude with no record, no requirement to register as a sex offender, and who can potentially do it again to another victim. That matters, and none of it existed prior to the reversal of the sentence.
To express it mathematically -- not that this necessarily helps anyone except hard-core geeks such as myself -- the first decision only reflects that (PF * DF) - TCF < DF - DM, where PF is the probability of a felony conviction, DF is the deterrent effect of a felony conviction, TCF are the transaction costs of a felony conviction, and DM is the deterrent effect of a misdemeanor conviction. The fact that this condition exists -- which is why the prosecutor drops the felony charge after the misdemeanor conviction -- doesn't mean that once DM goes away, (PF * DF) - TCF < DF. You've dropped out the DM.
It'd be one thing if the prosecutor never charged the defendant with a felony -- and instead only charged him with a misdemeanor -- in the first place. Because that decision reflects that the prosecutor indeed thought that (PF * DF) - TCF < DF. So if the dude gets convicted of a misdemeanor, then gets off on appeal, the decision to then file a felony charge is indeed presumptively vindictive, since we already established that a felony charge wasn't worth it.
But if, as here, the guy was charged with a felony initially, and the decision to drop that charge was made only after the guy was found gulity of and given a particular sentence for a misdemeanor, then the fact that marginal deterrent effect of a continued felony charge was not justified in such a setting doesn't mean that the decision to refile that charge when that margin radically changes (i.e., because the existing conviction is reversed) is vindictive. We're not punishing a guy for beating us. It simply means that the margin is now different. Not because we're angry -- after all, we charged him with a felony in the first place. But rather because, objectively, the consequences are now different than when we made the decision to drop the charges.
So I think I come out the other way on this one. My gut tells me what what the prosecutor did here was okay. Indeed, that I -- or any other neutral person -- might have done the exact same thing. Not for illegitimate reasons. But for entirely legitimate ones.
