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    Colorado Plea Bargaining Issues -Part III

    Plea Bargaining – By Criminal Defense Lawyer Specialist – H. Michael Steinberg Part III of V

    Plea bargaining in Colorado is at the same time very complex and critical to the best possible result in any criminal case.  This is part THREE of a FIVE part series that addresses all aspects of plea bargaining- this part addresses the power of the prosecutor to bring charges.

    Are There Any Limits on The DA’s Ability To Charge A Case?

    The Necessity for Probable Cause

    The charging decision is the heart of the prosecution function. The broad discretion given to a prosecutor in deciding whether to bring charges and in choosing the particular charges to be made requires that the greatest effort be made to see that this power is used fairly and uniformly.

    By its very nature, however, exercise of discretion cannot be reduced to a formula. A prosecutor ordinarily will prosecute if, after full investigation, he or she finds that a crime has been committed, the perpetrator can be identified, and there is sufficient admissible evidence available to support a verdict of guilty.

    The Need For The Prosecutor to Act Ethically

    Consistent with the ABA model ethical codes, this standard suggests that it is unethical conduct to institute criminal proceedings when he or she knows probable cause is lacking. A probable cause standard, which is substantially less than sufficient admissible evidence to sustain a conviction, is sufficiently minimal that a prosecutor should not err in deciding whether the quantum of evidence is adequate to institute criminal proceedings. A prosecutor should not institute, cause  to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.”

    The National District Attorney’s Association,  – National Prosecution Standards (2d ed. 1991 and as amended 1999), provides at Standard 43.3 that:

     “[t]he prosecutor shall file only those charges which he believes can reasonably be substantiated by admissible evidence at trial.”

    To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie,

    (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution,


    (2) that the government’s discriminatory selection of  him for  prosecution has been invidious or  in  bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as “intentional and purposeful discrimination.”

    Selective prosecution really has nothing to do with the underlying merits of the criminal charge itself, but constitutes “an independent assertion that the prosecutor has brought charges against the defendant for an unconstitutional reason, such as race or political affiliation.” The issue is to be resolved by the court, not a jury and the claim is usually made by a pretrial motion to dismiss or quash the indictment. 

    What Is A Vindictive or Retaliatory Prosecution?

    It is a violation of due process for a prosecutor to engage in vindictive or retaliatory prosecution by either:

    (1) obtaining an enhancement of a defendant’s sentence for exercising a statutory or  constitutional right,


    (2) prosecuting a defendant for a more serious offense or additional offenses in order to punish him for exercising a statutory or constitutional right.

    An enhanced sentence imposed as a result of vindictiveness must be vacated, and any  prosecution of the defendant through enhanced charges as a result of vindictiveness must be  dismissed.  A claim of vindictive or retaliatory prosecution in the second situation is typically made through a motion to dismiss or quash the indictment.

    The leading case on prosecutorial vindictiveness occasioned by the enhancement of a defendant’s sentence in retaliation for exercising a constitutional right is the United States Supreme Court decision in North Carolina v. Pearce. There, Pearce, who was convicted of assault with intent to   commit rape and sentenced to twelve to fifteen years imprisonment, successfully appealed his conviction and obtained a new trial. At his second trial he was convicted again and then sentenced to a term of imprisonment that was longer than the one he received for the first conviction. In holding that Pearce’s due process rights were violated by the imposition of the more severe sentence after the second trial as a penalty for his successful appeal of the first trial, the Court established:

    Due process of law, then, requires that vindictiveness against a defendant for having  successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may constitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of the apprehension of such a retaliatory motivation on the part of the sentencing judge.

    In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.  And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appea1.

    The Call:

    H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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