In a recent criminal case in New York County in which I was involved, the District Attorney’s Office charged one of the defendants with 106 counts – 105 felonies and 1 misdemeanor (two other defendants were charged with over 100 counts each). The case was a complex fraud case and the prosecution charged violations of 5 different statutes: (1) scheme to defraud in the first degree (1 count), (2) grand larceny in the first degree (15 counts), (3) falsifying business records in the first degree (88 counts), (4) the Martin Act (the New York securities fraud statute) (one count), and (5) conspiracy in the fifth degree (one count – a misdemeanor).

After approximately 3 months of testimony, arguments, and a combined 22 days of deliberations, the jury returned a mixed verdict. They acquitted the defendants of approximately 1/3 of the false business records counts and hung on all of the remaining counts. Before jury deliberations began, the prosecution moved to dismiss many but not all of the remaining business records counts prompted in part by the court’s request that the prosecution simplify the jury’s task to the extent possible.

In interviews with jurors after the trial concluded, it was clear that the inclusion of so many counts and so many different statutes apparently addressing the same conduct, created confusion during deliberations and worked to the disadvantage of the prosecution. Accordingly, with a retrial of two of the defendants scheduled for this coming September, the prosecution has dropped all remaining false business records counts. The court dismissed the grand larceny counts for lack of evidence. Thus, all that is left to retry are three counts: (1) scheme to defraud, (2) Martin Act, and (3) conspiracy.

With the benefit of hindsight, it is clear that the prosecution brought too many charges, thereby creating confusion for the jury with regard to the facts and the law. For example, jury instructions regarding the various counts showed overlap between the various statutes, but with such subtle differences that only a good law school professor could understand what could possibly distinguish the counts from one another.

I sense that the conventional wisdom is that a defendant is in better shape at trial and at sentencing if the number of counts is fewer, not greater. The concept is that the more counts, the more it looks like the defendant did something really bad. A 106 count indictment sounds a lot worse than a 3 count indictment. And at sentencing, the court obviously has more discretion to impose a harsh sentence if the number of counts is greater. However, the reality is that there can be a point where bringing more and more counts based on overlapping evidence can create too much confusion, thereby making the prosecutor’s job more difficult.

Increasing the number of counts also gives the appearance of game-playing by the prosecution. Ratcheting up the number of counts can lead to a jury having to return individual verdicts on potentially hundreds of counts. But to what end? Will the large number of counts lead to harsher sentences? Probably not, because judges base their sentences more on the facts of the case than the number of counts of which the defendant was convicted. Will the large number of counts lead to the admissibility of more evidence? Probably not in a case, such as this, where the same underlying conduct was concurrently charged under multiple statutes.

Prosecutors have tremendous discretion in deciding how many crimes to charge. In exercising that discretion, they should understand that often, less is more. And prosecutors and defense lawyers alike should welcome more simplicity for the jury because it should lead to more rational and fair verdicts.

From The Insider Blog:  White Collar Defense & Securities Enforcement.