Prejudicial Joinder: The Crazy-Quilt World of Severances

• Author: Major Dennis M. Corngan
• Pages: 01

I. ISTRODUCTION

Perhaps the most important decision made bv a civilian prosecutor or a military P C C U S ~

is the method of chnrgiAg an alleged criminal act.' The decision is parricularlv difficult where separate criminal offenses are subject to the same proof or where a group of persons is involved in criminal canduct. Joinder and severance of offenses and defendants pose significant problems in modern criminal administration because the charging decision affects [he allocation of scarce legal resources and the abilq of our crimmal process to accord defendants a fair trial.

The problems became more troublesome during the lax decade because of the increased incidence of group-oriented crime. \lore-over, the increased incidence was accompanied bv a concomitant increase in media attention to rhe trials of the gr&p members. In the civilian sector the "ens media gave the trials of mas5 offenders wide publicity. For example, the trials of the "Chicapo Seien," the "Harrisburg Seven," and the "Gainesrdle Eight" ' were lead stories in all major news media. The military justice system was also scrutinized closely by the public. Coveiage of the "\Is Lai

*This erticle U . ~ S idaprcd i r m 2 chew preionred to The Judge Advocate

Gcnerdr School, US hrmr, Chsrlorreri~lle, Virgmn, u.hh the author \\a3 8

ber of the Bars of Sow Jeriei, the U 5. Supreme Court. the U S

I057 (1955).

2See eg, Thc Kew York Tmci Index 1969. pp. 1814-!6. 1970. pp. 1585.90;

cf., United SIXEI V. Dillingrr, 472 F.2d 340 (7th Cir. 1972). CLTI. drnrrd, 410 US970 (1971).

SSrr e.g, The Nex. Yark Timer Index 1970. pp. 161. 1844. 'Srr r g . The NEW

York Timer Index 1574, p 1711.

\laisacre" the "Presidio \Iutmv,'' the "Green Beret" cases'

and various incidcnri of fraeeingi5 &s indeed masiiie. The hiohli publicized acquittals in rher;>ases iocuied the public's and the &,;I profession's at[ention on the seemine futhtv oi mass prosecutions on the one hand and the \rmefol d;plmrlan of rime. money and manpower in separate trials on the orher.

IC would be naire to conrend that the CIUSC oi these acquittals can be traced solely to an error in the decision to proceed with separnrc or mass tr>ds. Howm er. 1t is significant rhat the prosecutors and rhe accusers in each case nere faced wth difficulr charging decisions under pmdcr rules that on their face gaie them little guidance. .is the prosecutors and accusers in these cases discovered, the vague joinder rules are "among the mosr comple\ m the ~TI,oIc field of

criminal procedure."

In the light of rhe high acquirtal rare in mass trials for group aifenders. a staff judge adracare cannot confidently ad!-ise referral of charges to a l m r or common trial merely because rhe facts would permit such referral under the r a p e rules pierning the drafring of charges'" and the referral of charges to 1 o m or common t r ~ a l s . ~ ~

The

staff judge adrocste. and the rnilitar>- judge reviening the inirial charpinn decision. rnus conr~ler the !more fundnmeiital quewnn aheihe;'in the parricular case joinder n-dl both afford each accused a fair trial and at rhe same time gxe the Government an opportunity for an effective prasecurion.

The purpose of rhri article ii to a s s ~ t the itaff iudee rdiocate and the milmr!- judee in reioliing that fundamcnt'al qucitmn. The article esamines the morion to sever on the ground of prejudicial joinder of defcndanr? undcr pxqraph 69d. 11112ziii/ for Courts-Ilartiai'? and Rule 14 of thc Federal Rulei i

Criminal

Procedure.'l The conflictme considerations inherent in the choice of the appropriare mode of rriA of aroup offenders mast often arise and can best be analyzed within rheknterr of rhe motion to serer. Aneummatmn of the judicial dois to the \lanual and the Federal Rules will be made to discover rLe particular manner in which the courts have applied rhe raguelr worded rules to recurring fact situations. Finally, this article-addresses the issue whether the use ai discretionary sereiance rules 1s the most sansfactory method ai accommodating the accused's and the poxernmenr's c o m p n g interests.

11. PREJUDICIAL JOlSDLR DEFINED ASD DELNITED

A THE DEFIYITIOS lf/SJO/,\DER A.VD PREJCDlClAL

IOIA-DER D/STI\GCISHED\Vhen a defendant is charged 101ntIy nith a codefendant, the court may serer their cases for trial. In lust'fying its action, the

court will assert rhar the defendants were "mirjoined" or "prejudicially joined.'' The terms "mqomder" and "prejudicial joinder" might seem simple to define, but a great deal of confusion has arisen Ln the casc law because of the misuse ai the rwo terms.'' Appellate opinions are replete with admonitions to defense counsel who, in the courr's opinion, failed to dirringvish beween misjoinder and prejudicial joinder.'a A short descriptm of the many uses of the terms "misjoinder" and "prejudicial joinder" is necessary to clarlfy the scope of our discussion.

1. "Mirjoinder"

Paragraph 26d of rhc Manual defines a joint offense as one committed by two or more persons acting together in pursuance of a common intent.'8 Rule 8(b) of the Federal Ruler permits a iaint charge where defendanrs are "alleged to hare participated in the same act or transaction or the same series of acts or mnsacrions constiruring an offense or affemies."" Both the milirary and rhe federal practice perrnir charging defendants jointlv ahcrc all the defendants are charged under the law of principals, iiders and abettors.

accessories before rhe fact, or conspiracy.ls If the joinder of defendants does not satisfy paragraph 26d of ;he Xlanual or Rule S(b) of rhe Federal Rules, respectively, the term "misjoinder" IS properly used and sutomaric severance is required.'O

2. "Prejudicial Joisder"

There are two improper usee of the term "misjoinder" where the term "prejudicial joinder" is more appropriate.

Furt, rhe term "misjoinder" has been loosely applied ro common trials where the trial in common may unfairly prejudice an accused. Common trials are not permitted &der a strict interpretation of

13\ICII. 1969, p w

26d. See Act of Ocrobar 31, LPII. Is USC. I 2 11961).

United Stares v. Hope. 1J FRD. 183 (ED \Til. 1971). Unircd Stares v, W'rrh-ingrm, 31 C.\IR. Io1 (ABR 1131. Accessories after rhr fact mag not be chirgcd )oinriy. hlCM 1969. pari Xd, Unrred Srarer V. Wiihingron. 13 C.\I.R. 105 (ABR 19611la Tillmrn V. Unircd Starer. 4Q6 F.2d 930. 911 n I 15th Cml wcated on ohm p o d 9 jlj to m e defendmi, e m dmed oi to ofhm, 391 US. 810 (19691, Unircd Starer Y. Bodmheimcr, 2 US.C.ZI.A. 103. 7 C M R 6 (I9IJl. But see United Stsrcs s. Schrffer. ?66 F.?d 111 (?d Cir. 1919). ofd, 362 U.S. ill (I9601 (\%hen the

C O Y ~

ruled that lf a conspirrq count ids IO reach e jury the diverse co~nfi igainrt

individual dcfondinri ue not mupmed if rvbjrcr to the same proof md rhorc is ul1ppnmt zbiencc of bid fmrh on the p m of the Govcmmenr). For 1 dircvrrian md bibliosrsahv concernhe miimndcr of defrndmtr ICE NOWlander of Defm-

Rule 6(b) of rhe Federal Rules2@ bur are provided for m paragraph 331 of rhe Alanual h coinmnn rrial is one in which deiendanrr are tried together bur are charged iepararelk-.?' -4ccuied ma! be tried

legall!- proper. rbere E no ''miilomder." as char : e m LS properl>-

used; rather there is "prejudicial joinder" for which a court may swer the defendants m the interest of iustice.

A second. related misuse of the term "misjoinder" occurs in joint trials where the charges are appiapriatelr drawn but rhe trial of the defendants together would prepdice adme of rhem.25 Again, since the rules pertaining to the drafting of the charger and their referral to trial are satisfied, the ux of the term "misjoinder" is improper. "Prejudicial joinder," the subject of this paper. i s the term of art IO describe the grounds far the grant of a morion for severance in joint and common trials pursuant to paragraph 69d of the Manual and Rule 14 of the Federal Rules of Criminal Procedure.*8

Y Donohew. 18 U S.C hl A 149 19 C \I PI 149 119691, L'nhcd Srirer T Whiir, 7

REVlEV'

111. THE PRACTICE. ~ O S C O S S T I T L T I O S 1 L

RULES

A. THE TRIAL ICDGES DlSCRETlOS Prejudicial Iomder as a ground for severance has no sratutory history,?: The rule 1s an apparent er;teniion ai a common lau practice. At common law, in many pmsdicrions the joinder of defendants did not increase the aggregate number of defense challenges, the defendants had to share the same number of peremptory challenges which each individual defendant mould have had if he had been tried separately. In these jurisdictions, the coum developed the rule thar they

68 MILITARY UV'

would sever if rhe defendants prored that the prosecution had joined them in bad fairh for the sole purpose of limiting rhe number of peremprory challenges for each

As the practice continued, coum began to recognize arher possible grounds for granting seierances in the interest of justice.z8 Rule 14 of the Federal Rules codified rhe erisring case law perraining to the trial judee's dircrerionarv grant of sererance. The Rale was adopted w i t k k apparent d&greement among the advisory committee members,'" they mere apparentlv more concerned with misjoinder of defendanrs under Rule 8(b) and rhe misuse of consolidation of cam under Rule 1 3 . \Virh the exception of rhe second sentence concerning rhc rrial CUUIC'I aurhoritv to examine any pre-trial starementi of a co-defendant prior [o trial, Rule 14 has not changed since its firs draft ~n 1940.31 Providing for severance or orher appropriare relief. rhe Rule gram seemingly absolute discretion ro the trial judge to seier eren though rhe joinder of defendanrs complies with Rule S(b),3z

Ride 14 of the Federal Rules was the model for paraeraph 69d of the Manual. Ir lodges broad discretion in the militarv 1;'dge. The 3lanual appears to distinguish beraeen severances in joint trials and severances in common trials, encouraging greater liberality in

ZSSee United Srarei \. \lirchanr. 25 L'S (12 \Vhe8r.) IS0 (IS?:) iihere \Ir. Juirrce Story...