Overcharging: Nothing New Under the Sun

By David Cmelik

“Overcharging” is the act of bringing charges on counts of doubtful merit for the purpose of coercing a defendant to plead guilty to a less serious offense.” See Iowa Supreme Court Atty. Disciplinary Bd. v. Howe, 706 N.W.2d 360, 384 (Iowa 2005)(J. Larson, dissenting)(citing Thompson v. State, 61 Wis. 2d 325, 212 N.W.2d 109, 111-12 (Wis. 1973)). Overcharging a defendant by piling on more than one legitimate charge has been described as “horizontal” overcharging while charging a defendant with a crime more serious than he or she actually committed is considered to be “vertical” overcharging. Overcharging by Kyle Graham, Santa Clara Law Digital Commons, (available at http://digitalcommons.law.scu.edu/facpubs/608) (last visited February 4, 2014). Even members of the United States Supreme Court recognize that it is a “regrettable” but commonplace occurrence in American jurisprudence. Id. Regrettable but apparently not worthy of remediation. The problem with overcharging in the State of Iowa is that the prosecutor is the gatekeeper for what charges initially get filed or those that are presented to grand jury. In most cases in the State of Iowa, a Trial Information, commonly called an “indictment” in other states and in federal court, is the charging document that formally initiates the criminal lawsuit against a defendant. It typically must be found within 45 days of arrest. To be “found” it must be approved by the Court, a sitting judge, who reviews it to determine whether sufficient evidence of probable cause exists to proceed to trial. At that point, the document no longer belongs to the prosecutor. It is a formal charging instrument approved by the Court.   In the overwhelming number of cases, it substitutes for a preliminary hearing, a kind of “mini-trial before the trial” that is intended to determine the same thing. Preliminary hearings almost never happen where I practice law. Most days the preliminary hearing is waived and even if defense counsel demands a preliminary hearing, a Trial Information is typically filed by the prosecutor to “moot” or render meaningless the demand for the preliminary hearing (thus causing it to be denied and overruled by the judge). The Trial Information is found by the judge without consulting defense counsel and requires that the court review the “minutes of testimony,” which includes a witness list and a written prediction of what those witnesses’ likely testimony if called to testify. I have no knowledge of published statistics on how many Iowa county attorneys’ indictments (trial information’s) have been denied versus those that have been approved. But I have to guess that most indictments are approved by the court. Does that mean that some, but not all, overcharged trial informations make it through the review process? Likely. Judges are vetted by a proven system in Iowa of which most lawyers, including me, approve. I have to believe that the review of a proposed charging document by a qualified, detached jurist is better than prosecutors making the initial decision without judicial intervention. However, the fact that the process is ex parte (one-sided and presented only by the prosecutor) is problematic. Courts depend on the balance of the adversarial process. Approving indictments is based not on testimony but a written prediction of testimony the prosecutor believes will occur if the case goes to trial. Yes, clients can demand a preliminary hearing but it will be cancelled if the Court approves a Trial Information, which contains the same written prosecutorial prediction. All that any defendant can do in this situation, if charged by Trial Information, is pursue all defenses and due diligence to ensure that the process is fair even after he or she is overcharged by indictment.  A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending information to a lawyer over the Internet.

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