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49 U. Cin. L. Rev. 540 (1980)
Criminal Procedure - Due Process of Law - Prosecuting Attorneys - When a Prosecutor Adds a Distinct Charge Stemming from the Same Conduct Underlying the Original Charge, a Presumption of Vindictiveness Arises That Is Subject to Rebuttal by Evidence of Inexperience, Inadvertence, or any Other Explanation Negating an Inference of Vindictiveness in Fact

handle is hein.journals/ucinlr49 and id is 552 raw text is: CRIMINAL PROCEDURE-DUE PROCESS OF LAW-PROSECUTING ATTORNEYS-WHEN A PROSECUTOR ADDS A DISTINCT CHARGE STEMMING FROM THE SAME CONDUCT UNDERLYING THE ORIGINAL CHARGE, A PRESUMPTION OF VINDICTIVENESS ARISES THAT IS SUB- JECT TO REBUTTAL BY EVIDENCE OF INEXPERIENCE, INADVERTENCE, OR ANY OTHER EXPLANATION NEGATING AN INFERENCE OF VINDIC- TIVENESS IN FACT.-United States v. Andrews, 612 F.2d 235 (6th Cir. 1979). On November 8, 1976, three co-defendants were indicted for nar- cotics and firearms offenses. Upon the Government's motion, a Un- ited States magistrate remanded the defendants without bail.' The defendants successfully appealed that order over vigorous Govern- ment opposition.2 Two days later, the defendants were charged with an additional count of conspiracy to commit the substantive narcotics offense for which they had already been indicted. They moved for dismissal of the conspiracy count on the ground that it had been vin- dictively procured in retaliation for their exercise of the constitutionally-protected right to seek bail. The Government's re- sponse was that the prosecutor on the case was inexperienced and had not realized that she could seek an indictment for conspiracy as well as for the substantive offense. Granting defendants' motion, the district court found an appear- ance of prosecutorial vindictiveness that might dissuade future defen- dants from exercising constitutional rights. Thus the Government was required to prove that its action was justified by changed cir- cumstances or newly-discovered evidence. Because no such proof was presented, the court ruled that the conspiracy charge violated defen- dants' due process rights.3 On appeal to the United States Court of Appeals for the Sixth Circuit, held: Reversed and remanded. When a prosecutor adds a distinct charge stemming from the same conduct underlying the original charge, a presumption of vindictiveness arises that is subject to rebuttal by evidence of inexperience, inadvertence or any other explanation negating an inference of vindictiveness-in- fact. 4 1. The Government's request that bail be denied was predicated upon the belief that one of the co-defendants who was to testify for the state had been threatened. United States v. An- drews, 612 F.2d 235, 237 n.2 (6th Cir. 1979). 2. Id. 3. United States v. Andrews, 444 F. Supp. 1238 (E.D. Mich. 1978), rev'd and remanded, United States v. Andrews, 612 F.2d 235 (6th Cir. 1979). 4. United States v. Andrews, 612 F.2d 235 (6th Cir. 1979).

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