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When ambiguity favors the defendant

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by: Ryan Scott • August 14, 2017 • no comments

I have often noted that ambiguity in the law favors the state. If a defendant honestly can't tell whether or not crimes arise out of the same criminal episode, then he won't know the maximum sentence he might fact. Consequently, his decision to go to trial or accept a plea offer must factor in the worst case scenario, i.e., the sentence he might get if the court finds multiple criminal episodes. The prosecutor has little reason to make the same calculation from the other side. Maybe she'll make the offer marginally better because the defendant has a plausible claim to one criminal episode, but the consequences of being wrong -- arguing for multiple criminal episodes and losing -- is going to be of minimal significance.

This situation plays out in various ways every date in the criminal justice system. I don't include situations where the defendant doesn't know if he's going to be found guilty or not. But I do include situations where there is a genuine dispute over whether -- if the defendant actually did the acts he's accused of -- he's actually guilty of an offense, because there is some ambiguity over what the law actually says.

But there is one situation where the ambiguity in the law provides a potentially huge upside to the defendant. And that is when he has a slightly outside-the-box type of legal argument that could result in dismissal of most or all of the charges, and because of the relative novelty of the argument, there is no clear case law one way or the other. Because it's a longshot, the prosecutor scoffs and gives it little weight, generally assuming -- with good reasons -- that most judges are highly risk-adverse and aren't likely to grant the defendant's motion.

In this hypothetical, there would be no reason that -- if the motion were granted -- the state couldn't reindict. But it won't, perhaps not wanting to give other defendants a reason to believe it will prevail.

However, if the defendant wins on appeal, then it may very well be too late -- statute of limitations, perhaps -- for the state to reindict. In other words, the state -- by not reindicting out of an abundance of caution -- has potentially given a huge windfall to the defendant, but only if he wins on appeal. The problem is, of course, is that it's the ambiguity in the law -- the lack of any guidance in statute or case law -- that makes this scenario possible.

We saw this play out recently, as a number of defendants (Poston, Miller, Clardy) had some or all of their convictions reversed after prevailing at the Court of Appeals on the improper joinder demurrer. Had the demurrer been granted at the trial level, the state would have reindicted and the defendants would have received no benefit.

Some defense attorneys are hesitant to file motions of such novelty that they invite prosecutors to scoff. But experienced defense attorneys -- if they are confident in their ability to assess the law even without clear guidance -- recognize scoffing for what it is: a negotiating tool wielded by persons whose confidence in their legal analysis far outstrips their skills at legal analysis. But these recent cases demonstrate that novelty can be a feature, not a bug, of a prevailing defense strategy. Just ask Poston, Miller and Clardy.

Defense attorneys who didn't file the improper joinder demurrer when its potential for success was in doubt have another opportunity: the co-defendant demurrer. Like the improper joinder demurrer, it's usually -- but not always -- lost at the trial level, but on appeal, it might make all the difference in the world.