When you want the state to reindict and when you don't

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by: Ryan • May 22, 2013 • no comments

In my last post, I had explained why indictments which lack the language necessary to justify joinder ("as part of the same act and transaction as count 1") are worth demurring to, even if, factually, the counts would be properly joined.

The most obvious reason for doing this is that you might lose the demurrer, but if you win on appeal, your client's conviction is not only reversed, but in some cases it may be too late to reindict (past the statute of limitations).

But what I'm hearing lately, from around the state, is that some prosecutors are reindicting pretrial to include the necessary language. By doing so, they are taking away an appellate issue. Should you be disappointed when the prosecutor does the right thing?

Leaving aside the fact that it's good as a matter of principle when prosecutors follow the law, regardless how it impacts your client, it can also be very good because it's possible it will redound to your client's benefit very quickly.

The example I like to use is this: traffic stop, and your client is ultimately arrested for felon in possession and failure to register. Because he's a B on the grid, he's presumptive prison on both counts. But the indictment doesn't include the language supporting joinder. So you demur, and the state reindicts, arguing that count 2 is from the same act and transaction as count 1.

Bingo! You've just saved your client some prison time. Because if you went to trial and lost, without that language being in the indictment, your prosecutor might argue that each count comes from a separate criminal episode (and they'd probably be right). Therefore, when the two counts are run consecutively, he's a B on both counts and he gets prison on both counts.

But once the state alleges that the two counts are from the same criminal episode, specifically relying on that language in order to defeat the demurrer, the shift-to-I rule kicks in at sentencing, and if the state wants to run the counts consecutively, your client shifts to an I on the second count, i.e., presumptive probation. Congratulations! Because the state reindicted, they took away an appeal issue but they saved your client some prison time.