Court Smacks Prosecutors For Refiling Identical Charges In Hopes Of Keeping Evidence From Being Suppressed

from the sore-losers dept

Prosecutors hate losing — so much so that they’re willing to color outside the legal lines for a chance at a win. Plenty of prosecutorial misbehavior has been uncovered over the years, most of it tied to the withholding of exonerating evidence.

But they also do other, smaller things. Like this, via

Police officers went to an apartment building in Clay Center where Parry and his girlfriend lived with their 2-year-old son. A neighbor of Parry’s had reported a strong smell of burning marijuana in the building. The officers concluded the smell originated in Parry’s residence, so they knocked on the door. Parry and his girlfriend stepped across the threshold to speak with the officers. The woman admitted she had been smoking marijuana earlier in the day during a birthday celebration. The officers requested permission to look in the apartment.

Long story short, consent was denied but the officers searched the apartment anyway, finding drugs and paraphernalia. This evidence was suppressed at Dominic Parry’s hearing. This ruling was affirmed on appeal. The prosecutors decided that — despite two rulings to the contrary — they really deserved a second chance to put Parry behind bars. So, they gave themselves one.

Four days after the release of the panel decision in Parry I, the State dismissed No. 13CR2 against Parry without prejudice and immediately charged him in Clay County No. 14CR35 with the same offenses. As a practical matter, the complaints in the two cases differ only in their district court identification numbers.

Not only were the complaints the same, but the initial outcome was the same.

Not surprisingly, Parry filed a motion to suppress in No. 14CR35. The district court held another evidentiary hearing. This time the State argued the search of Parry’s apartment was proper because exigent circumstances excused the need for a search warrant and even if the search were constitutionally improper, the marijuana and paraphernalia would have been inevitably discovered. The district court found those arguments unpersuasive and again granted Parry’s motion to suppress.

And again, the state appealed, leading to the appeals court’s disgruntlement at having to address the same prosecution twice.

The doctrine should apply here even though, technically, this case is not the same case as Parry I. The distinction between the two rests on the slenderest of technicalities. The charges against Parry are the same. The dismissal of the original case was immediately followed by the refiling of those charges in this case—a maneuver the State undertook several days after the adverse ruling from this court in Parry I. The State readily acknowledges the goal of the maneuver to be precisely what the circumstances otherwise indicate. The State wanted a do-over on the issue of the constitutionality of the police search of Parry’s residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.

The state claimed it wanted to explore doctrinal arguments it didn’t look at during its first prosecution. The court reminds them that if this sort of thing were permitted, nothing would stop prosecutors for continually refiling charges until the desired result was achieved.

The State has dismissed and refiled criminal charges to evade an appellate decision confirming that Parry’s Fourth Amendment rights were violated in a search of his home. The State wants to garner another hearing in the district court to make additional arguments on the issue. Law of the case aims to prevent precisely that sort of repetitive airing of points already decided in the district court and reviewed on appeal. If the doctrine were inapplicable in this situation, the State, in the face of an adverse decision on the merits in this appeal, could again dismiss, refile, and get yet a third opportunity to argue the issue—with no end in sight.

The end result of a finding in favor of the state would lead to widespread abuse, as failed prosecutions could be endlessly revived to address the state’s arguer’s remorse.

In marshalling their arguments, legal advocates always pick and choose among possible positions, honing the promising ones and jettisoning those that don’t seem to be. Having chosen disadvantageously, especially in hindsight, an advocate cannot lay claim to manifest injustice as a result.

The justice system is already riddled with holes. Searches that blow right past Fourth Amendment protections are routinely salvaged through exigent circumstances exceptions, inevitable discovery rulings, nonverbal cues being interpreted by courts as consent and various other loopholes in constitutional coverage. (Beyond that, law enforcement officers are excused for any violations of the Fourth Amendment via the good faith exception, various levels of immunity and a court system still largely deferential to the needs and wants of law enforcers.)

Dropping charges and refiling them just to get another chance to secure a conviction is an obvious abuse of a system that’s already severely compromised. That the state actually thought this might work says more about the system itself than the moral turpitude of the prosecutors.

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Comments on “Court Smacks Prosecutors For Refiling Identical Charges In Hopes Of Keeping Evidence From Being Suppressed”

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Anonymous Coward says:

Re: Re: Haven't they all got better things to do?

How is this not Double Jeopardy?

The Prohibition Against Double Jeopardy”, by Micah Schwartzbach, Nolo

 . . .

Attachment of jeopardy

The government must place a defendant “in jeopardy” for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn’t cause jeopardy to “attach”—the proceedings must get to a further stage.

Generally, jeopardy attaches when the court swears in the jury. (See When does jeopardy attach in a jury trial?) In a trial before a judge, jeopardy attaches after the first witness takes the oath and begins to testify.

 . . .

Anonymous Coward says:

Re: Re: We've known that for years now.

If there are no sanctions then damn straight they’re going to keep doing this ad nauseum.

So what if they do it again? In the broader scheme of things, this incident comes nowhere near the prosecutorial misconduct involved in, for instance, knowingly hiding exonerating evidence from the defense.

But when that latter happenstance occurs, most prosecutors will argue up-and-down that the justice system’s interest in “finality” must preclude granting a new trial or a new hearing to someone who may after all be factually innocent.

So why not just agree with this particular prosecutor that some issues should indeed be re-examined, because the courts do sometimes have a greater interest in getting things right than they do in washing their hands.

You could still disagree with the prosecutor here that his issue is one of those times. But does he really deserve punishment for advancing the principle?

AW says:

Re: Re: Re: We've known that for years now.

Uh no…the justice system is supposed to be biased against the prosecutor, not the defendant. The defendant should only need to prove their innocence once, while a guilty verdict should need to be proven multiple times over. It’s better that a guilty man goes free than an innocent man goes to jail. This prosecutor willfully is attempting to violate both the spirit and the letter of the law. Were this the defense attorney pulling something similar…oh wait the defense attorney can’t pull this crap. This prosecutor deserves severe punishment up to and including disbarment for attempting to bypass a judge’s orders.

Uriel-238 (profile) says:

Re: Re: Re: No confidence.

Can I submit that the system is so corrupt and so balanced already in favor of prosecutors with several issues that present a presumption of guilt that I have no confidence in the US justice system at all, and recognize that I only adhere to its rulings because it has a gun to my head (e.g. the power of sheer force) and not because I actually respect or agree with its rulings?

Can we allow that all prisoners of the United States are political prisoners, given that every last conviction has been determined under a dubious system?


Anonymous Coward says:

I disagree with the last bit

“That the state actually thought this might work says more about the system itself than the moral turpitude of the prosecutors.”

No, I think it says more about the moral turpitude of the prosecutors.

“The System” assumes judges and lawyers are all intelligent adults of good moral character.

It assumes wrong (as we’ve seen in a multitude of cases), but I’m not sure if there’s a better system.

Of course the problem is that lawyers suffer no repercussions for all but the most egregious behavior, so for many lawyers there’s no incentive to exercise good moral behavior.

For example there’s no incentive for the prosecutor in this case to realize his immoral conduct, he probably just shrugged his shoulders and thought to himself, “next time maybe they won’t catch-on,” but that’s his moral turpitude, not the systems.

nasch (profile) says:

Re: I disagree with the last bit

Of course the problem is that lawyers suffer no repercussions for all but the most egregious behavior, so for many lawyers there’s no incentive to exercise good moral behavior.

Are there ever cases of prosecutors being seriously punished for violations of justice like this? I’m sure they get smacked around for stuff like insider trading or prostitution, but something directly related to their job duties? I can’t think of ever hearing about such a case.

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