One way to alter the outcome of a trial is by overcharging. What is this?
NOTE: I started this posting a few days ago, and since then, it appears the prosecutors in the Rittenhouse trial may have overcharged by going for first degree murder. They are asking the judge to allow the jury to include lesser charges. Sounds like they should have gone for manslaughter, all along.
Sadly, too, I know one of the jurors on one of these cases, and they are a rabid Trump-supporting Republican. So, I'm guessing a hung jury at best, if not an outright acquittal.
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Two national show-trials are going on right now, and both are steaming, flaming, rolling dumpster fires. No matter what the verdicts in either one will be, some people will be unhappy and say justice wasn't done. And that might very well be the case.
In both trials, I was concerned that the prosecutors might use the trick of "over-charging" to let the defendants slip through the criminal justice net. How does over-charging work? Simple - you elect to charge the defendant for a higher level of crime than the evidence will support, and not offer the jury the option of convicting on a lesser charge.
The jury, flummoxed by this, cannot find "guilty" on the higher charge, but would sorely like to convict on a lesser charge. As a result, they find "not guilty" and the defendant goes free, and because of double-jeopardy, likely won't be re-tried.
For example, someone is killed in a murky fact situation. Happens a lot these days, eh? The killer didn't necessarily set out to kill that specific person - they just were recklessly going after people with a gun in their hands. In fact, it might not be proven that they had the intent to kill anyone.
For first degree murder, you have to show intent or as they say in the law, mens rea. There are various levels of murder charges, depending on the State, and then there is manslaughter. Depending on what State you live in depends on how these charges are applied. For example, there is the standard of "depraved indifference" that might be applied, if you acted in a manner that would result in the death of someone, but just didn't give a shit. For example, some States apply a similar standard to drunk driving - if you get behind the wheel drunk, you are acting with depraved indifference to human life. Or maybe just wanton recklessness, which might result in a manslaughter charge. Again, it varies from State to State and what the District Attorney wants to charge the defendant with.
There are also other charges like "Felony Murder" - if you rob a bank and someone gets killed, you could be tried for murder, as someone died during the commission of a felony. And it doesn't matter whether you shot a bank guard, or your accomplice shot a bank guard, or the guard tripped and fell and hit his head and died, or whether your fellow robber was shot and killed - you can be tried and convicted for felony murder. And pardon me if I don't weep for you if you are convicted. Stop robbing banks. What irks me is when the media acts like the Felony Murder Rule is some weird new thing or an injustice. "He didn't even pull the trigger!" they cry. Yea, but he put people in harm's way and someone died as a result. There should not be a "get out of jail free!" card for bank robbers, nor safe spaces for them. But I digress.
So for example, someone goes after a person, carrying a gun. A fight ensues and the gun goes off and someone is killed. Sounds familiar, eh? Were they guilty of first-degree murder? Well, traditionally, you'd have to show they had the intent to murder someone, not just being reckless or indifferent. But manslaughter? Probably an easier conviction, unless they can claim self-defense (which might be tricky when you are the one pointing the gun at an unarmed person).
As prosecutor, you want to get the defendant off, particularly if he is a personal friend of yours or aligned with your political beliefs. So you charge him with first-degree murder and don't offer the jury the option of convicting on a lesser charge. The Judge instructs the jury on the elements of the charge - that the defendant must have actually killed someone and intended to do so. If the prosecution can't show intent (which they intentionally will not try very hard to show) the jury will acquit and "justice has been done" - riots ensue.
This of course, assumes the prosecutor will prosecute at all. "Prosecutorial Discretion" begins long before the courthouse, and in fact begins when the Police show up at a crime scene. You get pulled over for speeding, and the Policeman may decide to let you off with a verbal warning - that is within his discretion (lucky you!). If you were issued a ticket, it may be settled by pleading to a lesser charge, with no points on your license. Or the Prosecutor may decide to Null Pross and just drop the charges and let you go free. In one of these recent controversial cases, that is exactly what happened - the Prosecutor, who was a personal friend and former employer of one of the defendants, just decided there was no crime here to prosecute.
But other minds prevailed and a grand jury was convened, and a new prosecutor brought in. Quite frankly, the original prosecutor should have recused themselves. You can't be making decisions in cases involving your personal friends or former employees.
As you might imagine, prosecutorial discretion can result in a system of justice where who-you-know trumps what actually happened. And those with money and connections (and the right lawyers) can literally get away with murder - well some people claim that, anyway.
Of course, the entire thing could backfire and a jury could find the defendant guilty - not wanting a guilty man to go free. But there are always appeals, and an appellate court might find that the mens rea was lacking and reverse the conviction or order a new trial - although technically, an appeals court is loath to alter the "findings of fact" of a jury.
There is another angle, of course, and that is if you want to send someone up the river on a trivial charge, to try to up-charge them with a more serious crime. So you bust someone with drugs and you want to send them away because you are up for re-election and want to be the "tough on crime" guy. But a simple possession charge isn't enough. So you charge them with intent to distribute and tell the jury you've caught a major drug kingpin, even if he is just some 20-year-old kid. He's hardly Scarface.
Mark was on such a jury, but fortunately they offered two charges - possession and the intent-to-sell. The Alexandria Police had busted a guy who was, in all likelihood, dealing in crack. But the Police screwed up the case and had no real evidence, other than the possession of a small amount of the drug, that the defendant was actually selling or trying to sell the drug. The jury had little choice in the matter - they had to convict only on the lesser charge, which no doubt frustrated the officers who worked the case. I mean, they knew this guy was pushing crack on Route 1 near the projects. But they had to prove it in a court of law - a pretty high standard. Well, at least they got something, I guess.
It worries me a bit, seeing these trials going on, whether such an overcharging scenario could occur. By shooting for the moon, they may end up with an acquittal, when a conviction on a lesser charge would be possible. In fact, pleading these cases out to manslaughter would probably be a better solution, but with such highly publicized cases, not politically possible. And it is sad when a criminal case is overshadowed by politics. Justice is rarely done.
Prosecutorial misconduct takes on many meanings, however, and overcharging is not really misconduct per se. In a typical case, the prosecutor is charged with failing to turn over exculpatory evidence to the defendant. You've all seen My Cousin Vinny and remember the scene where Joe Pesci, as defense attorney, is surprised that the prosecutor in that case is willing to hand over all his files for inspection. It is the law, and if he failed to do so, it would mar the conviction and provide grounds for appeal.
Yet, there are some prosecutors who apparently never saw the movie or paid attention in law school, and intentionally hid evidence from the defendant. As a result, convicted felons and murderers end up going free - some of them were even innocent! By trying to tip the scales of justice, these prosecutors end up toppling them.
But overcharging isn't generally considered prosecutorial misconduct, mostly because prosecutorial misconduct is usually construed as something that is prejudicial to the defendant and not a covert means of helping them. There is also the case that in some situations, prosecutors overcharge in order to grandstand in front of voters - trying to turn a minor case into a television-ready one. So long as the jury convicts and the prosecutor didn't hide evidence, no harm, no foul, right?
Well, maybe not. These two highly publicized cases are going to go to a jury in the next few days or weeks and the end results - whatever they are - will please nobody. And it doesn't seem like the prosecution in either case is acting in good faith - or maybe they are just hopelessly incompetent. Hard to tell which!