Perry was tried and found guilty of the misdemeanor assault of a fellow inmate. When he exercised his statutory right to a new trial under North Carolina law, the prosecutor charged him with felony assault for the same conduct that had been previously charged as a less serious offense. Perry then pleaded guilty to the felony assault indictment.
Perry argued before the Supreme Court that the prosecutor’s action was unconstitutional under the due process clause of the Fourteenth Amendment. The Court held that when defendants have a statutory right to a new trial, apprehension that prosecutors may retaliate by recharging with a higher offense, if they were to exercise this legal right, may impermissibly prevent defendants from ever availing themselves of a new trial. Such prosecutorial action in effect cuts off a defendant’s access to the courts in violation of the due process clause. Moreover, a defendant does not have to prove that a prosecutor acted vindictively because it is the mere apprehension of retaliation that chills a defendant’s assertion of the right to appeal.
Thus, absent circumstances where there is the impossibility of initially indicting on a more serious charge, prosecutors may not constitutionally bring a more serious charge against defendants who have sought new trials as of right. Perry therefore extended North Carolina v. Pearce, which held that, following a retrial, a defendant cannot receive a harsher sentence unless the trial judge sets out specific reasons.
REBECCA L. BARNHART
References and Further Reading
Cases and Statutes Cited
See also Due Process; North Carolina v. Pearce, 395 U.S. 711 (1969)