How the Prosecutor Can Thin the Allegations to Get More Convictions And Time
by: Ryan • June 27, 2014 • no comments
The law sometimes does some crazy curliques. And pointing out the absurdity of it doesn't do much good when the judge really wants to impose more time. But here are a couple of examples.
Assume is a defendant is charged with Robbery I on a theory of causing or attempting to cause serious physical injury and Assault II for, again, causing serious physical injury. Those counts merge if the charges are submitted to a jury exactly that way, because all the elements of assault II can be found when the jury votes on Rob I based on causing serious physical injury. But if the prosecutor strikes the language about causing serious injury and leaves only the language about "attempting to cause serious physical injury," not only do the counts NOT merge, but the Court of Appeals has upheld a trial judge who ran the counts consecutively. 160 months on two counts instead of 90 on one count, all because the prosecutor struck language from the indictment.
(As an aside, when the prosecutor does that, the defense attorney should ask for an instruction that says the defendant must intend a serious physical injury. While that instruction wouldn't apply to causing a serious physical injury, it does apply to an attempt to cause serious physical injury. See me for the details.)
Similarly, if defendant is charged with assault II based on using a dangerous weapon and UUW, based on using, attempting to use or possessing with intent to use a dangerous weapon, the counts merge. But if the prosecutor strikes the language about using or attempting to use, leaving only "possess with intent to use," the counts don't merge. Two convictions instead of one, just by striking language from the indictment.
