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Legal-Guru
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1359
Experience:  Experienced Criminal Trial Attorney since 1998.
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This question is for Legal- Guru:

I need to ask a question about something that I think is called Vindictive Charging ( or similar)
This case has been going on for a long time, so will try to condense the question:
The case was settled by plea bargain 3 years ago, but it has now been remanded by the Court of appeals due to the DA being unfair and trying to sneak in several thousand dollars in restitution that had not been agreed to in the settlement.
There were two "victims", and one is now deceased. The DA stated - On The Record- that the reason she was dismissing one charge was because the one person is now deceased.

Now that the case has very unexpectedly come back, and has to start over, the DA is now saying that this charge with the deceased person is to come back too..she states that it was previously dismissed only as a part of the plea bargain, but that is NOT what she said on the record.
It is clear that she is mad that the case came back, and the COA stated that what she did was unfair. It now seems that the DA is trying to punish the defendant just because she won the appeal.
So, my question is to ask if this is a Vindictive act on the part of the DA? And can that be a reasonable argument to use to not allow the charge to come back?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Legal-Guru replied 3 years ago.
Two things:

(1) DA's (and everyone else) are allowed to be vindictive so long as the actions they take are legal. The reasons behind their actions do not, from a legal perspective, make any difference with the exception that someone cannot be prosecuted because of their race, religion, age, sex, or national origin. That is called "selective prosecution". The term is somewhat misleading though because, just like a cop can issue a citation to one speeder and not another, the DA can arbitrarily charge one person and not another so long as it's not based upon one of those prohibited reasons I listed. The remedy for unfair charging decisions is said to be at the ballot box and not in the courts.

(2) If the charge was dismissed as part of a plea agreement, it's possible that the DA would be bound by that agreement and prohibited from re-filing unless the court of appeals order undid the plea agreement. I wasn't entirely clear on that part of it.
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1359
Experience: Experienced Criminal Trial Attorney since 1998.
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