Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts

This article, part of a symposium on prosecutorial discretion, uses the Martha Stewart case to look more closely at the various types of discretion prosecutors wield. Unlike some other commentators, we are not persuaded that the case against Stewart was brought in bad faith or that it was unwarranted at its core. As we discuss in the first part of this article, prosecutors had ample reason for investigating her conduct and charging her with a crime. At the same time, for reasons advanced in the second section of this article, other prosecutorial decisions made in her case give us greater pause. In particular, we critique an aspect of the Stewart prosecution that has yet to be the subject of sustained analysis, having to do with a phenomenon that we call "redundant charging." That phrase refers to the prosecutor's nearly unrestricted ability to manufacture closely related charges based on the same course of conduct. In Stewart's case, a single coverup resulted in five separate charges, and in fact the prosecutors were conservative in their approach. Under existing case law, for instance, prosecutors could have charged each of Stewart's discrete lies as a false statement and as obstruction of justice, for a total of 22 counts. How is this possible? And what are the consequences? We explore the answer to these questions by looking at three possible sources of limitation on redundant charging: the federal criminal code, the Constitution, and the Federal Sentencing Guidelines. The federal code places virtually no restraints on redundant charging; rather it creates and exacerbates the problem. The Supreme Court's current approach to the double jeopardy prohibition is equally impotent in this context. Finally, the Sentencing Guidelines only work their count-collapsing magic after conviction, when much of the damage from redundant charging has already occurred. For reasons discussed in the article, if the goal is obtain convictions that are based on a unanimous jury finding of guilt beyond a reasonable doubt and plea agreements that reflect the real culpability of the defendant, redundant charging must be cabined. In a perfect world, the problem would be fixed by Congress, as part of a larger project of legislating a comprehensive and coherent criminal code. Such a code could, akin to Chapter D of the Federal Sentencing Guidelines, contain rules about duplicative charging. A further, marginal incentive to avoid such charging could be provided by modifying the definition of same offense for purposes of double jeopardy analysis toward a same-conduct or same-transaction test. But neither of these developments is likely. Therefore, we briefly advance a proposal that is perhaps not quite as bold but is more attainable: we suggest that the courts use their common law power to create a "law of counts." The authority to develop this law could come from the due process clause, separation of powers doctrine, or administrative law