King Bruce of Scotland, you will recall, was a king driven into exile by those damn British. During the course of this, he was taking refuge in a cave, defeated, when he chanced upon a spider which was unable to spin a web, presumably having nothing to do with the fact that it was Scottish and hence drunk. So it tried and failed and tried and failed until it finally succeeded, which gave the Good King Bruce an epiphany that if you try enough times you will eventually succeed at what you want. He then promptly defeated the British and Scotland has been an independent country ever since but he doesn’t get nearly all the credit that Mel Gibson does presumably because he wasn’t wearing blue war paint.
Just last week, the Connecticut Appellate Court issued an opinion [PDF] endorsing the ‘King Bruce’ theory of prosecutions: try as many times as you want. But in order to understand the opinion in State v. Brundage II, you have to start at the beginning with State v. Brundage I.
In the beginning, Brundage was a creep. Over a period of roughly 8 years, he allegedly sexually assaulted his then-girlfriend’s daughter. The girlfriend ended the relationship in 2003 and the girl finally reported the abuse in 2007.
He was charged by the prosecution with two counts of Sexual Assault in the First Degree and two counts of Risk of Injury to a Minor. Out of all the possible crimes available to them, these are the two they chose to proceed on. Brundage, on cue, got convicted and was sentenced to a long time in jail.
Except he appealed, claiming that the criminal charges were actually barred by the statute of limitations. On appeal, the prosecution and the Appellate Court agreed that all charges for all incidents occurring prior to 2003 were barred and could not be prosecuted:
Thus, the only alleged offenses that are not time barred are those that occurred after May 22, 2002, because the current version of § 54-193a, which provides an extended limitation period, applies to those offenses. The defendant and the state disagree, however, as to the appropriate remand in these cases. The defendant urges us to set aside the judgments of conviction and direct the trial court to dismiss the charges. The state argues that we should remand the cases for a new trial, providing the state with the opportunity to amend the informations to allege only offenses that occurred after May 22, 2002. We conclude that the cases should be remanded for a new trial.
And so remanded for a new trial it was. Except now the State saw an opportunity. Instead of charging him again with two counts of Sexual Assault in the First Degree and two counts of Risk of Injury, simply for two incidents that occurred between 2002 and 2003, the State’s eyes lit up.
We can charge him with anything that isn’t time barred, they thought. And so they charged him with Kidnapping in the First Degree, a charge that has no statute of limitations and one that has a greater punishment than either Sex 1 or Risk of Injury.
To care about this story, you have to care about a few things like Due Process and the potential for abuse by prosecutors. If you don’t care about those things, you can stop reading now.
So Brundage filed a motion to dismiss, saying that the prosecution couldn’t add charges that it didn’t file the first time around. In effect, they were estopped from doing that because the remand of the case in Brundage I was very specific to the charges at issue.
The trial judge agreed with Brundage but unfortunately for him, the Appellate Court did not. It is important to note at this point that there is no commonality of judges between Brundage I and Brundage II.
After spending some pages extolling the law of prosecutorial discretion, the Appellate Court held last week that:
In light of those factual allegations, the state was well within its broad discretion to charge the defendant with the aforementioned offenses. The mandate of Brundage I is that the state could not proceed on any charges against the defendant that were time barred under General Statutes (Rev. to 1993) § 54-193a. The charges contained in the November 26, 2012 substitute information are not time barred under that statute. Accordingly, we conclude that the court improperly dismissed that substitute information.
In his appellate brief, the defendant alleges that ‘‘[t]he state is seeking to retry the defendant on the kidnapping charges only because the defendant successfully exercised his constitutional and statutory rights to contest the validity of the original prosecution.’’ That bald assertion is not accompanied by analysis or reference to any evidence indicative of such animus. As the state persuasively has argued in this appeal, its decision not to pursue the kidnapping charges at the defendant’s first trial ‘‘very well may have been influenced by the state of flux that existed in our kidnapping law in 2008 and 2009 . . . .’’ Absent any evidence to the contrary, we presume that the state did not harbor such animus toward the defendant, but rather acted to vindicate its legitimate interest in the prosecution of crime.
Did you get that? It’s okay for the State to add new charges that they previously did not, after the defendant won his appeal and got a new trial because they had [insert whatever excuse you want] that is presumptively legitimate and thus there is no indication of animus. Except that in the first appeal, the State sought only to try him again on the charges that he was originally charged with.
Prosecutorial discretion is the bogeyman that gives unfettered power to the prosecutors to do as they choose, frequently without having to provide an explanation for it.
If they felt that strongly that the defendant had kidnapped the victim, then why not charge that in the first instance? Is there an opportunity to perpetually subject the defendant to the stress and danger of criminal prosecution?
What if, for instance, they choose to charge only one instance of sexual assault in a trial, out of 50 alleged incidents? With a 30 year statute of limitations, does that mean that if the defendant keeps winning, they get to keep trying over and over again until they get a conviction?
Where does this end? Can the State try you first for a murder and then if you win, try you again for a felony murder?
Is the goal here to weave a web of fairness and justice or a trap of convictions?