PD-0149-23 06/14/2023
“Where: (1) the trial court, in dismissing the State’s capital murder indictment on the grounds of prosecutorial vindictiveness, also dismissed the ‘instant cause’ with prejudice, effectively precluding the State from reindicting Gabaldon on an untainted murder charge or any lesser-included offense, and (2) Gabaldon never challenged the validity of the underlying murder charge, such that he received all the relief to which he was allegedly entitled, the trial court’s di[s]missal of all underlying charges with prejudice erroneously imposed an extreme and unwarranted punitive, rather than curative, remedy not authorized by law, such that the ‘with prejudice’ portion of the dismissal order is void, and the trial court’s order should be reformed to remove the ‘with prejudice’ language.”
In March 2021, Gabaldon was indicted for murder. In November, the State sought a continuance of the December trial date. Gabaldon objected and requested a dismissal of the charge because he was denied a speedy trial. The trial court withheld a ruling but indicated that it would deny the motion because the State failed to prepare for trial. The State then told the court it planned to reindict for capital murder and would therefore need more time to prepare. Gabaldon objected. The State reindicted the next day and requested a continuance, which the trial court denied on November 19th. Gabaldon moved to dismiss for prosecutorial vindictiveness after the State filed notice that it intended to seek the death penalty. The trial court dismissed the indictment with prejudice, citing vindictiveness.
The court of appeals affirmed. It concluded that Gabaldon met his burden of proof by establishing actual vindictiveness. It rejected the State’s arguments that Gabaldon did not produce objective evidence, that it did not reindict because Gabaldon asserted his speedy-trial right, and that the State’s explanation for the re-indictment rebutted vindictiveness. As to the latter, the court concluded that because Gabaldon established actual vindictiveness, the rebuttable presumption standard is inapplicable. However, it went on to say that the trial court found the prosecutor’s reasons for the re-indictment―newly discovered evidence that it was a hate crime involving overkill―not credible. And regardless of the reason offered, the trial court concluded it was done for retribution. Finally, the court rejected the State’s argument that it should be allowed to reindict for murder because that would give “the State exactly what it sought when it retaliated: a continuance of the murder prosecution. The State would be getting a re-do.”
The State argues that affirming the dismissal with prejudice and prohibiting the State to reindict for murder invades the province of the elected District Attorney. The “prejudice” finding goes beyond the vindictiveness remedied by the dismissal. Gabaldon is therefore getting a windfall. The lower court is wrong about a re-do because there has never been a trial. The State should get its “first-do” by prosecuting any lesser offense (to capital murder), particularly when the original charge was not tainted by any prosecutorial misconduct.
