Creating an Impossible Burden: State ex rel. Becker v. Wood and Prosecutorial Vindictiveness.

• Author: Moore, Rachael

State ex rel. Becker v. Wood, 611 S.W.3d 510 (Mo. 2020) (en banc).

1. INTRODUCTION

   In the American criminal justice system, prosecutors have an enormous amount of discretion and power. (1) With dockets growing more cramped, prosecutors often use threats of harsher charges and sentences to deter defendants from exercising their right to a jury trial or an appeal. (2) Prosecutors can also wield this power for purely vindictive or retaliatory purposes, as one prosecutor noted when reflecting on his career:

   Sometimes a public defender or a defense lawyer will just try and bust your ass all the time. Frankly, you end up busting theirs back. You get irritated, but you try not to take it out on the people they represent... Should you penalize him for that? No. Do we? Probably, sometimes. You try not to, but we're human. (3) When prosecutors sidestep their ethical obligations in this way, defendants have one possible remedy: striking the enhanced charges by proving prosecutorial vindictiveness. (4) The Supreme Court of the United States has created two tests for a defendant to prove prosecutorial vindictiveness when a prosecutor increases or enhances charges: the presumption of prosecutorial vindictiveness test and the objective evidence test. (5) Missouri courts have adopted both of these tests and applied them to various situations beyond merely an enhancement in charges. (6)

   In State ex rel. Becker v. Wood, the Supreme Court of Missouri was asked to apply the tests to a case where a newly elected prosecutor filed a notice of intent to seek the death penalty seven weeks before trial, months after the defendant, Aaron Hodges, had withdrawn from plea negotiations. (7) The court was also asked whether a prosecutor can be required to testify before a judge to help a defendant prove prosecutorial vindictiveness. (8) The Supreme Court of Missouri held that a prosecutor's decision making when charging defendants was protected attorney work-product and thus, prosecutors cannot be compelled to testify. (9) The court found that Hodges had not met the presumption of prosecutorial vindictiveness test and remanded to the lower court to determine if Hodges could make a showing under the objective evidence test. (10) In its reasoning, the court seemed to suggest that defendants are foreclosed from creating a presumption of prosecutorial vindictiveness at the pretrial stage and that only an increase in charges, not an increase in penalty, is sufficient to create a presumption. (11)

   This Note examines how the majority's reasoning in State ex rel. Becker v. Wood creates an almost impossible burden for defendants to prove prosecutorial vindictiveness before trial or when a prosecutor seeks the death penalty. Part II discusses the facts and holding of State ex rel. Becker v. Wood. Part III examines the history of the death penalty in Missouri, as well as the history of prosecutorial vindictiveness as developed through the federal courts and Missouri cases. Part IV discusses the majority's reasoning in creating a higher burden in State ex rel. Becker v. Wood, including a discussion of Judge Russell's dissent. Part V discusses the flaws in the majority's reasoning regarding both the presumption test and objective evidence test, the impact of the court's analysis of the death penalty as it relates to prosecutorial vindictiveness, and the potential ramifications on defendants' ability to prove prosecutorial vindictiveness in the future.

2. FACTS AND HOLDING

   In the early morning of June 22, 2015, police received a call that a burglar had broken into an apartment in Pacific, Missouri and was subsequently detained by the residents of the apartment. (12) Upon arrival, Police found Aaron Hodges, who had broken in and was "making very off the wall statements," including saying that he was being possessed and attacked by demons and killing people. (13) Police contacted the Critical Intervention Team, which concluded that Hodges needed to be transported to the hospital. (14) Hodges was then committed for a ninety-six-hour psychiatric evaluation. (15)

   Around 8:30 p.m. that same day, Madeline Dreiling drove to her son Cory's apartment. (16) Cory Dreiling was autistic and living alone for the first time. Ms. Dreiling had not heard from Cory for ten hours and was worried. When she entered the apartment, Ms. Dreiling found her son and his roommate both brutally murdered in their apartment. (17) Cory Dreiling's apartment sat four buildings away from the apartment that Aaron Hodges had attempted to burglarize earlier that morning. (18)

   While investigating the murder, police learned that Aaron Hodges lived in the victims' building and that Mr. Hodges would often play video games with the victims. (19) Hodges's proximity to the victims, coupled with his bizarre statements when officers found him at the burglary scene led police to go to the St. Louis hospital where Hodges was being evaluated. (20) Police arrested Hodges for the murders and interviewed him under controlled conditions. (21) Growing frustrated with a lack of progress in the interview, the officers took Hodges back to the murder scene. (22) Confronted with both the physical evidence at the scene and the brutality of the murders, Hodges allegedly confessed to the murders, describing the events in detail. (23) Hodges was then served with a grand jury indictment charging him with the murders and was taken back to jail. (24)

   On July 15, 2015, Hodges was arraigned and pleaded not guilty. (25) He filed a jury trial waiver in January of 2016, and he and Franklin County elected prosecutor, Robert Parks, began plea negotiations. (26) Hodges's scheduled guilty plea was continued numerous times over the next two and a half years. (27) Finally, on June 15, 2018, Hodges filed notice of his intent to proceed to trial and raise the defense of not guilty by reason of insanity. (28) The State subsequently withdrew all outstanding plea offers. (29) Prosecutor Robert Parks retired during this time, and Matthew Becker was elected Franklin County prosecutor in January 2019. (30) On February 26, 2019, the case was set for a trial starting that September. (31)

   On July 24, 2019, five months after setting the trial date and seven weeks before trial, the prosecutor's office filed a notice of intent to seek the death penalty. (32) Hodges filed a motion to strike the State's intention to seek the death penalty, alleging prosecutorial vindictiveness in retaliation for Hodges proceeding to trial. (33) Hodges also filed a motion endorsing both Becker and Associate Prosecuting Attorney Matthew Houston as witnesses to testify at the hearing regarding the motion to strike. (34) The circuit court entered an order requiring Becker and Houston to appear and give sworn testimony at the hearing, leading Becker to petition the Missouri Court of Appeals for a writ of prohibition to prevent him from being required to testify. (35) The Missouri Court of Appeals denied the writ. (36) Becker then sought a writ from the Supreme Court of Missouri, which granted the appeal and issued a preliminary writ of prohibition. (37)

   The Supreme Court of Missouri later made permanent the writ of prohibition on the order requiring Becker and Houston to testify, holding that: (1) a prosecutor's choice whether to seek the death penalty is protected attorney-work product, and (2) Hodges had not shown a presumption of prosecutorial vindictiveness to shift the burden to the |State to disprove the alleged vindictiveness. (38) The court remanded the case to the trial court to determine if Hodges met the objective evidence test; however, Hodges would have to prove this without any testimony from the prosecutors. (39)

3. LEGAL BACKGROUND

   Prosecutors have "more control and discretion" than any other member of the criminal justice system. (40) They decide the charge, plea bargain, and recommended sentence. (41) When it comes to deciding whether to charge a defendant and what charge to bring, prosecutors have "enormous power." (42) Absent evidence of discrimination, defendants have few, if any, remedies to challenge a prosecutor's charging decisions. (43)

   When prosecutors stretch the ethical and legal boundaries of their discretion, however, one potential remedy for defendants is showing prosecutorial vindictiveness. (44) Prosecutorial vindictiveness arises when a prosecutor, in an effort to deter a defendant from exercising constitutional or statutory rights that delay legal proceedings, uses their discretion in charging and offering sentences to threaten or punish a defendant. (45)

   1. Prosecutorial Vindictiveness Nationally

      The Supreme Court of the United States first considered the issue of prosecutorial vindictiveness in 1974 in Blackledge v. Perry. (46) In Blackledge, the defendant was convicted of misdemeanor assault with a deadly weapon in a North Carolina trial court. (47) Under North Carolina law, defendants had a right to a trial de novo in North Carolina Superior Court after a conviction. (48) When the defendant filed his notice of appeal and intention to seek a trial de novo in superior court, the prosecutor charged the defendant with felony assault with a deadly weapon. (49) The Supreme Court held that the State was constitutionally barred from bringing a more serious charge in response to the defendant exercising his statutory right to appeal through a trial de novo in superior court. (50) According to Justice Stewart, "A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." (51) In discussing prosecutors' motivations in deterring defendants from exercising their rights, Justice Stewart continued, "[I]f the prosecutor has the means readily at hand to discourage such appeals--by 'upping the ante' through a...