Prosecutorial Vindictiveness Claim

In Bordenkircher v. Hayes (1978) 434 U.S. 357, the United States Supreme Court held that the prosecutor's conduct did not violate the defendant's right to due process by openly presenting him with the disagreeable choice of accepting the plea or facing charges on which he was clearly subject to prosecution. (Id. at p. 365.) Twiggs v. Superior Court (1983) 34 Cal.3d 360 stated that Bordenkircher "specifically did not decide the issue of vindictiveness presented in a case such as this, where the record suggests that the more serious charges were not part of the 'give-and-take' of plea negotiations. Rather, in this case, the circumstances strongly suggest that the prosecutor unilaterally imposed a penalty in response to the defendant's insistence on facing a jury retrial." (Twiggs, at p. 371.) The Twiggs court found a presumption of vindictiveness, and found its reasoning consistent with the general rule of the Ninth Circuit Court of Appeals that "where the defendant shows that the prosecution has increased the charges in apparent response to the defendant's exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. " (Ibid.) Twiggs applied this rule to the case before it because "the prosecution showed no interest in charging the additional prior convictions until the defendant insisted on a retrial, circumstances that plainly gave rise to a presumption of vindictiveness." (Id. at p. 372.)