July-August 2012

Righteous accountability versus forbidden retaliation

John Stride

TDCAA Senior Appellate Attorney

You may have heard of such a case. After preparing for weeks, a prosecutor took a defendant to trial and, in the course of full-blown proceedings with a reticent victim, dueling experts, and an agile adversary, obtained what seemed to be an appropriate conviction and sentence: say, 40 years for aggravated sexual assault. Satisfied, the prosecutor moved on to other cases. Weeks or months later, however, a court finds reversible error—maybe even as a result of no act or omission on the prosecutor’s part—and awards the defendant a new trial. Frustrated with the lack of finality and even more determined to hold the defendant accountable, the prosecutor starts all over again. The prosecutor works even harder, adds another charge, and eventually obtains a more severe sentence on retrial—now 60 years. The prosecutor feels some sense of gratification because the defendant finally got what he deserved.

    Or did he?

    An increase in exposure or an assessment of a harsher sentence is one that can provoke a defendant to question the integrity of the process. At retrial, the inclusion of additional or greater charges may lead a defendant to complain vigorously that his greater exposure is nothing more than prosecutorial payback for his successful appeal. Likewise, after retrial, the defendant might allege on appeal or in a writ of habeas corpus that the additional or greater charges or increased sentence resulted from prosecutorial or judicial retaliation. When additional or greater charges or a harsher sentence are an option on retrial, then, we must position ourselves to defend the enlarged exposure.1

Due process2

As a matter of due process, both prosecutors and trial judges are forbidden from retaliating against a defendant simply because he has exercised his legal rights.3 The Supreme Court of the United States acknowledged the claims of judicial vindictiveness in 1969 and prosecutorial vindictiveness five years later. Federal and Texas courts continue to address them. Judicial vindictiveness and prosecutorial vindictiveness are now firmly established sister-claims.4

    Seeking a harsher result or assessing a more severe penalty against a defendant because he has obtained a retrial after a successful legal challenge is vindictive. Not only does it punish the defendant for doing what he is legally entitled to, it also has a chilling effect on a defendant’s exercise of his trial and appellate rights. If a defendant knows that he is likely to face a more severe punishment after a successful direct appeal or collateral attack, he is less likely to assert his rights to a fair trial.5 Moreover, the Supreme Court has identified an “institutional bias inherent in the judicial system against the retrial of issues that have already been decided.”6 Thus, to some degree, there is an inherent risk that the integrity of trial and appellate proceedings can be substantially undermined.

Prosecutorial ­vindictiveness

The Court of Criminal Appeals has addressed prosecutorial vindictiveness in six published opinions over the last 30 years, and the Supreme Court has decided fewer still. But our state criminal high court’s last opinion on the topic was six years ago and, currently, there is national discourse on prosecutorial misconduct; thus, it seems timely to remind ourselves of the nature of the claim.

    Ordinarily, so long as a prosecutor has probable cause that the accused committed a statutory offense, the prosecutor has substantial discretion in determining whether to prosecute and, if so, the nature of the charges to bring.7 This prosecutorial independence is vital to our adversarial criminal justice system. Accordingly, the courts presume that criminal prosecutions are brought in good faith and without discrimination.8 But a prosecutor’s discretion is tempered by the merciful constraint that he is not permitted to retaliate against a defendant who simply exercised his legal rights. As the Justice Stewart writing for the majority of Supreme Court of the United States opined in 1977:

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’9

    Accordingly, in very particular circumstances, the good faith presumption yields to a claim of retaliation or vindictiveness. A constitutional claim of prosecutorial vindictiveness may be established in two ways: 1) a presumption of prosecutorial vindictiveness or 2) actual vindictiveness. A trial court decides both issues on a case-by-case basis depending on the evidence presented and the credibility of the witnesses.10

    A “presumption of prosecutorial vindictiveness” is proven when there is proof of circumstances that pose a “realistic likelihood” of such misconduct. The State must overcome this presumption by rebutting it or suffer dismissal of the charges.11 But, as we will see below, a presumption does not always attach.

    “Actual vindictiveness” is proven when there is “direct evidence that the prosecutor’s charging decision is an unjustifiable penalty resulting solely from the defendant’s exercise of a protected legal right.”12 The defendant has the burden of both production and persuasion unaided by any presumption, and the burden is a tough one.

    In the event that a defendant brings a claim of vindictiveness but is unable to prove either actual vindictiveness or a realistic likelihood of vindictiveness, the trial judge need not reach the issue of government justification, and the State can remain mute.13 Nevertheless, a careful trial judge or prosecutor may choose to develop the record so as to dispose of the claim once and for all time. This is especially true if the hearing is conducted near the time of the trial when memories are fresh, witnesses are available, and detail can be provided.

Failed claims of vindictiveness

The Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, only by those that pose a realistic likelihood of vindictiveness.14 If a defendant obtains a new trial from the trial judge rather than an appellate court, no motivation for vindictiveness arises; after all, the trial judge awarded the new proceedings.15 If the case is simply the same one tried to a different jury or a different trial judge, without additional or more severe charges brought by the prosecution, a concern of retaliation should not arise. The fresh jury or judge on retrial can increase the sentence from that previously assessed usually without danger of a successful claim of retaliation. Neither a fresh judge nor a fresh jury should care about any prior proceedings or results (to the extent they are re-deciding them) and, at least, should not be ill-motivated simply because the defendant prevailed on appealing after the first trial.16 Simply, they have no personal stake in the prior proceedings.

    With pretrial prosecutorial decisions to amend the charge, the Supreme Court has advised, “A mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.”17 So no presumption automatically attaches to pretrial charging decisions.

    Usually, after reversal of a guilty plea, if the defendant is assessed a longer sentence at the retrial there is no presumption of vindictiveness.18 With “the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.”19 So, also, when the State drops a habitual offender allegation and obtains a guilty plea at the first trial resulting in an 11-year sentence, but the defendant successfully appeals and, on retrial, the defendant goes to the jury with the habitual offender allegation and is assessed a life sentence, the Court of Criminal Appeals held that the result was a consequence of the defendant’s choice of trial strategy, not any vindictiveness.20

    “The mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified.”21 Also, a claim of prosecutorial retaliation does not attract a presumption of vindictiveness if after a defendant has elected a jury trial but before he has been convicted, the State brings other charges.22

    Finally, the advent of new caselaw authorizing certain action can provide the basis for non-vindictive addition, such as a deadly weapon finding, on retrial.23

    If a presumption of vindictiveness adheres on retrial, a prosecutor can rebut it by an honest testimony that another charge or an enhancement was inadvertently excluded at the first trial. In Texas, unlike some other states, an explanation of a mistake or oversight is an “objective explanation” that may be sufficient to rebut a presumption of prosecutorial vindictiveness especially when a prosecutor does not merely deny his state of mind was motivated by vindictiveness.24 Also, know that an explanation of “we forgot,” while it could be considered “lame,” is not vindictive.25

    On appeal, a claim of prosecutorial vindictiveness can be forfeited for many of the usual reasons, including failing to raise the issue in the trial court or obtaining a ruling on a claim.26

Judicial vindictiveness

In a similar vein to prosecutorial vindictiveness, the hazard of judicial vindictiveness arises when the same judge imposes a more severe sentence on retrial. The Supreme Court has advised that, in that instance, the sentence is “more likely than not” attributable to the vindictiveness of the judge. Thus, absent the reasons for the increased penalty appearing affirmatively on the record, a presumption of vindictiveness lies and objective information justifying the heavier sentence is required to rebut the presumption.27 But the court has also cautioned that “it no more follows that such a sentence is a vindictive penalty … than that the inferior court imposed a lenient penalty.”28

    In any case, events at the retrial can readily provide all that is required to rebut a claim of vindictiveness. First, during trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. Second, the defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. Third, after trial, the factors that may have indicated leniency as consideration for the guilty plea may no longer be present.29 Thus, just ask the trial judge to put her detailed reasons on the record.

    Additionally, when a trial judge places a defendant on deferred adjudication community supervision but then adjudicates and assesses a term of years greater than the original term of probation, the Court of Criminal Appeals has held the doctrine of vindictiveness inapplicable. The court reasoned that, at the first trial, the defendant had neither been found guilty nor assessed a sentence so when he was adjudicated he had not been effectively retried.30

    Besides developing a record on why increased charges or a harsher sentence is warranted on a retrial, the tour de force is securing favorable findings of fact. In Texas v. McCullough, a jury convicted and assessed a 20-year sentence but, after reversal on appeal, the trial judge assessed a 50-year sentence.31 The Supreme Court found no basis for applying a presumption of vindictiveness because the defendant had elected to go to the judge for sentencing.

    Just as significantly, however, the trial judge had given detailed reasons for the enlarged sentence: She thought the prior sentence too lenient in light of significant new evidence heard at the second trial. Describing this explanation as “findings,” the Supreme Court held that, even if the presumption of vindictiveness was to apply, the findings were sufficient to overcome the presumption. Thus, obtaining a trial judge’s explanation to prevent a claim of judicial vindictiveness or findings of fact to head off a claim of prosecutorial vindictiveness can resolve any claim and may even serve to avert one altogether.


If events at a retrial could give rise to a claim of vindictiveness—either prosecutorial or judicial—protect a conviction with an adequate record. Ensure that there are detailed reasons for the different charges or more severe penalty and, if prosecutorial vindictiveness is at issue, request findings of fact. These steps are not difficult to accomplish, but they serve well to safeguard cases in which a defendant’s accountability and any victims’ peace of mind has already been postponed for too long.


1 The Supreme Court of the United States has even reproduced an inmate’s letter reflecting concern about the likelihood of a harsher sentence on retrial. See North Carolina v. Pearce, 395 U.S. 711, 725 n.20 (1969).
2 For reasons of space, this article is confined to the leading decisions of the Supreme Court of the United States and the Texas Court of Criminal Appeals.
3 Pearce, 395 U.S. at 725.
4 See Blackledge v. Perry, 417 U.S. 21 (1974) (prosecutorial vindictiveness); Pearce, 395 U.S. 711 (judicial vindictiveness).
5 Pearce, 395 U.S. at 725-26.
6 United States v. Goodwin, 457 U.S. 368, 376 (1982).
7 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (after defendant declined a plea bargain agreement, the State also charged him as a recidivist).
8 Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).
9 Hayes, 434 U.S. at 363 (citations omitted), quoted in Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984).
10 Neal, 150 S.W.3d at 174.
11 Id. at 173.
12 Id. at 174-75.
13 Id. at 175.
14 Perry, 417 U.S. at 27.
15 Castleberry, 704 S.W.2d at 24.
16 See Texas v. McCullough, 475 U.S. 134, 140 n.3 (1986) (noting that, despite other courts implying a presumption of vindictiveness even where different judges were involved, the Supreme Court did not specifically address the issue in its seminal case and, further, a subsequent judge has no personal stake in the prior reversed conviction); Chaffin v. Stynchcombe, 412 U.S. 17 (1973) (different juries).
17 Goodwin, 457 U.S. at 384 (after a defendant elected for a jury trial on misdemeanor charges, the government obtained an additional felony charge).
18 Alabama v. Smith, 490 U.S. 794, 801 (1989), overruling Simpson v. Rice, the companion case to Pearce, 395 U.S. 711.
19 Hayes, 343 U.S. at 363 (emphasis in original).
20 Alvarez v. State, 536 S.W.2d 357, 360 (Tex. Crim. App. 1976) (op. on reh’g).
21 Goodwin, 457 U.S. at 382 (1982) (explaining Hayes, 434 U.S 357).
22 See Goodwin, 457 U.S. 368.
23 See Lopez v. State, 928 S.W.2d 528, 533 (Tex. Crim. App. 1996).
24 Hood v. State, 185 S.W.3d 445, 450 (Tex. Crim. App. 2006).
25 Id. at 450 n.16.
26 See Neal, 150 S.W.3d at 175-80 (claim untimely, not specific, and not ruled upon); see also Hood, 185 S.W.3d at 449 (claim procedurally defaulted because it was not first presented to the trial court).
27 See Smith, 490 U.S. at 798-99.
28 Colten v. Kentucky, 407 U.S. 104, 117 (1972) (rejecting claim of judicial vindictiveness under two-tier misdemeanor system—similar to Texas’ municipal and county court system—of prosecution).
29 Smith, 490 U.S. at 803.
30 Walker v. State, 557 S.W.2d 785, 786 (Tex. Crim. App. 1977).
31 McCullough, 475 U.S. 134 (after a jury assessed sentence, the trial judge granted a new trial on grounds of prosecutorial misconduct, presided at the retrial, and personally assessed sentence).