Section 13.52 Vindictive Prosecution

• Library: Criminal Practice 2012 Supp

C. (§13.52) Vindictive Prosecution

Closely related to and often concurrent with discriminatory or selective prosecution is vindictive prosecution. Vindictiveness may come about as a result of the prosecutor’s personal ill will toward the defendant. Moss v. Hornig, 314 F.2d 89 (2^nd Cir. 1963); United States v. Bourque, 541 F.2d 290 (1^st Cir. 1976). Personal animus of the prosecuting attorney may disqualify the prosecuting attorney from prosecuting the case. See State v. Tyler, 587 S.W.2d 918, 929 (Mo. App. W.D. 1979); State v. Harris, 477 S.W.2d 42 (Mo. 1972). But a prosecuting attorney is not prohibited from bringing charges just because the prosecuting attorney does not like a particular defendant. Something more must be present. Dismissal on these grounds does not prevent recharging by another prosecutor. In re November 1979 Grand Jury Velsicol Chem. Corp. v. United States, 616 F.2d 1021 (7^th Cir. 1980).

A prosecutor cannot increase the charge against the defendant in retaliation for the defendant’s exercise of a statutory or constitutional right. State v. Quimby, 716 S.W.2d 327 (Mo. App. W.D. 1986) (defendant asked for jury trial on misdemeanor; court held that state was vindictive when it dismissed the misdemeanors and filed felonies); State v....