NCJ Number
56657
Journal
Memphis State University Law Review Volume: 7 Issue: 4 Dated: (SUMMER 1977) Pages: 703-711
Date Published
1977
Length
9 pages
Annotation
THE SIXTH CIRCUIT IN HAYES V. COWAN (1976) HELD THAT PROSECUTORS MAY NOT BRING A HABITUAL OFFENDER INDICTMENT AGAINST AN ACCUSED WHO HAS REFUSED TO PLEAD GUILTY TO THE SAME UNENHANCED SUBSTANTIVE OFFENSE.
Abstract
GENERALLY, A PROSECUTOR'S DISCRETION OVER WHOM TO INDICT AND WHAT CHARGES TO LEVY ARE CONSTRAINED ONLY BY PRACTICAL CONSIDERATIONS OF POLITICS AND LIMITED RESOURCES. NEVERTHELESS, THE COURTS RECOGNIZE THAT AN OFFICIAL'S POWERS MAY ALSO BE RESTRICTED BY THE CONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION AND DUE PROCESS. DISCRIMINATORY USE OF AUTHORITY IS ULTRA VIRES, AND HAS BEEN SUCCESSFULLY CHALLENGED BEFORE THE U.S. SUPREME COURT IN UNITED STATES V. FALK (1973) AND IN BLACKLEDGE V. PERRY (1974). THE HIGH COURT CONSIDERS THE MERE OPPORTUNITY FOR OR THE APPEARANCE OF RETALIATION BY A PROSECUTOR SUFFICIENT TO INHIBIT A DEFENDANT'S EXERCISE OF PROCEDURAL RIGHTS, AND TO INVALIDATE A SUBSEQUENT CONVICTION. THE RATIONALE OF THE SIXTH CIRCUIT IN ITS REDUCTION OF A DEFENDANT'S SENTENCE TO THAT WHICH WOULD HAVE BEEN OBTAINED IN PLEA BARGAINING RESTS ON TWO GROUNDS. THE COURT RECOGNIZED THE INHIBITIVE EFFECT OF POSSIBLE PROSECUTORIAL RETALIATION IF A BARGAIN WAS REJECTED, AND THE COHESIVE EFFECT OF A PROSECUTOR'S CHARGING POWERS AGAINST A BARGAINING DEFENDANT. A PROSECUTOR MAY NOT THREATEN A DEFENDANT WITH THE CONSEQUENCE THAT MORE SEVERE CHARGES MAY BE BROUGHT IF THE DEFENDANT INSISTS ON EXERCISING HIS RIGHT TO A TRIAL. IN EXCEPTIONAL CASES, WHERE SUPERVENING EVENTS OR DISCOVERIES JUSTIFY A MORE SERIOUS CHARGE, A NEW INDICTMENT MAY STILL BE OBTAINED. THE PROSECUTOR MUST, HOWEVER, MAKE THE NEW INFORMATION A PART OF THE RECORD, AND CARRY THE BURDEN OF DISPELLING ANY INFERRENCE OF RETALIATION. FOOTNOTES ARE PROVIDED. (TWK).