When a trial judge has found no probable cause to hold a defendant for trial and the prosecutor has appealed that decision, may the prosecutor seek to dismiss the appeal and bring new charges against the defendant when he has discovered no new evidence? We believe that, on the facts of this case, this procedure violates a defendant’s right to due process of law.
On January 25, 1979, defendants George Henry George, John W. Paluzzi and Demetrios Hatsios were charged with one count of conspiring to obtain money under false pretenses, and with three counts of obtaining money under false pretenses, MCL 750.157a; MSA 28.354(1), MCL 750.218; MSA 28.415.
All the charges arose from an alleged scheme to inflate repair bills for automobiles insuréd by Detroit Automobile Inter-Insurance Exchange and repaired at New Center Collision, a garage in Detroit. Paluzzi and Hatsios are the officers of *207 New Center; George is a claims adjuster for the insurer, whose duty it was to approve estimates from garages, including those from New Center.
Defendants were bound over for trial after a preliminary examination before Visiting Judge Robert P. Van Wiemeersch in Detroit Recorder’s Court. All filed motions to quash. On April 27, 1979, Judge Donald Hobson of Detroit Recorder’s Court granted the motions.
On May 15, 1979, the prosecution filed a claim of appeal in this Court, but moved to dismiss the appeal on November 30, 1979, stating that the claim was not supported by the record. This Court granted the motion after Paluzzi and Hatsios stipulated to the dismissal.
On January 10, 1980, the three defendants were charged again with the identical crimes alleged in the first complaint and warrant. They filed motions to quash, arguing that to permit the initiation of a second prosecution on the same charges would deprive them of due process of law. At the hearing, the prosecution admitted that it had no newly discovered evidence to present. On May 8, 1980, Judge Warfield Moore, the examining magistrate, quashed the second warrant and complaint, finding a violation of due process. The prosecutor has appealed.
On appeal, the prosecutor argues that Judge Moore erred in finding a due process violation. He maintains, correctly, that neither the Double Jeopardy Clause nor the doctrines of collateral estoppel and res judicata bar a prosecutor from proceeding against an accused by bringing a second complaint and warrant after the first has been dismissed. The defendants argue that although double jeopardy, res judicata and collateral estoppel do not bar subsequent proceedings, due process does. *208 They assert that the continued exposure to prosecution results in the unfair harassment of an accused, that bringing a second prosecution without having offered any new evidence in effect asks a magistrate to review the decision of a coequal judge, and that the law of the case bars reconsideration of the probable cause determination. While we decline to adopt the broad rule suggested by the defendants, we believe that the initiation of a second prosecution was improper in this case and affirm Judge Moore’s order to quash. Our decision in this regard is limited to the narrow facts of this case.
In Michigan, a defendant has a right to a preliminary examination at which the examining magistrate must make a determination of whether a crime has been committed and whether there is probable cause to believe the accused has committed it. MCL 766.13; MSA 28.931. One of the purposes of the preliminary examination is to weed out groundless or unsupported charges and to relieve the accused of the degradation and expense of a criminal trial and deprivation of his liberty if there is no probable cause to believe he committed the offense.
People v Duncan,
If a defendant believes that he was wrongly bound over for trial, he may seek leave to appeal, or may raise, the issue in a subsequent appeal as of right if he is convicted. On review, an appellate court examines the evidence to determine whether the magistrate abused his discretion in making the bind-ovér decision.
People v Doss,
There is no provision in statute or court rule that directly addresses whether a prosecutor may initiate new proceedings against a defendant who has been dismissed after a preliminary examination. The issue has been considered, however, in a series of cases in Michigan courts.
In
Missaukee Prosecuting Attorney v Missaukee Circuit Judge,
"The law presumes that prosecuting attorneys, in bringing and conducting such examinations, will act in good faith towards both the people and the accused, and that they will not subject an accused person to a second examination without good reason.” Missaukee Prosecuting Attorney, supra, 139.
Similarly, double jeopardy was found not to bar a subsequent arrest, examination and trial in
People v Miklovich,
As defendants recognize, double jeopardy considerations come into play only when a defendant has
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been placed in jeopardy, and that does not occur until a jury has been sworn, or, in a bench trial, until the first prosecution witness has been called.
Serfass v United States,
There likewise is no bar under the principle of res judicata to a subsequent prosecution. That principle applies only where there has been an adjudication on the merits.
Bray v Dep’t of State,
Collateral estoppel, the corollary of res judicata, also is ineffective in preventing the prosecutor from taking a second "bite at the apple”.
People v Price,
An accusation that the bringing of a second warrant and complaint constituted improper judge shopping was made in People v Nevitt, supra. While the Court did not directly consider whether the second complaint violated the accused’s due process rights, the Court soundly criticized the procedure but considered itself bound by the Supreme Court’s holding in Miklovich, supra, and found no error.
"In its opinion the circuit judge characterized the prosecutor’s methods as 'judge shopping’ and stated that such procedure was improper.
"We likewise find the prosecutor’s methodology to be in actuality 'judge shopping’ and find such tactics to be offensive. However, because we can find no law prevent *211 ing this course of action, we feel constrained to reverse the circuit judge in this case.” Nevitt, supra, 403.
However, just three months later, this Court in
People v Laslo,
This case, like Laslo, presents squarely the issue of whether defendants’ due process rights were violated. Unlike the defendant in Laslo, however, these defendants were subjected to judge shopping, were told that no newly discovered evidence would be presented at the second preliminary examination, and were compelled to retain counsel at considerable expense to represent them in each proceeding.
Decisions in other jurisdictions hold that where due process rights are violated by practices which amount to harassment, a second prosecution without new evidence constitutes reversible error. In
Jones v Oklahoma,
In California, the Supreme Court carefully considered claims that a second preliminary examination after a finding that the testimony of the complaining witness in a marijuana sale case was incredible violated an accused’s protections against double jeopardy and the doctrines of res judicata and collateral estoppel. The court majority rejected these arguments, but noted in a caveat:
"We acknowledge the possibility that, in a particular case, repeated prosecutions for the same offense could lead to harassment of the accused, and we have no doubt that the courts retain the inherent power to protect against serious abuses of prosecutorial discretion in this regard.” People v Uhlemann, 9 Cal 3d 662, 669; 108 Cal Rptr 657;511 P2d 609 (1973).
The majority, observing that no harassment had been alleged in that case, declined to reverse on this ground.
In several other jurisdictions, courts have cautioned against harassing a defendant by initiating a second prosecution without obtaining additional evidence. While the problem has not been addressed specifically under due process terms, the question of harassment is closely related to the traditional notion of due process as that which "comports with the deepest notions of what is fair and right and just”.
Solesbee v Balkcom,
Courts in a few other jurisdictions have directly addressed the issue of whether a second preliminary examination may violate a defendant’s right to due process of law. As in the earlier cases in Michigan, the question is usually considered in terms of a double jeopardy problem. Thus, no bar to a second prosecution was found in
United States ex rel Rutz v Levy,
In many jurisdictions, a prosecutor is free to seek a second prosecution by proceeding through a grand jury, even after a magistrate has found no probable cause to bind a defendant over for trial.
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This procedure has been upheld against double jeopardy challenges in New York,
People ex rel Hirschberg v Close,
We believe that this Court in People v Laslo, supra, first acknowledged the power, recognized in Jones v Oklahoma, supra, and many other jurisdictions, to curtail the state’s right to repeatedly proceed against the individual in those limited instances when the repeated prosecution clearly constitutes harassment. In our opinion, the instant case is such an instance. Here, after initiating the appropriate appellate procedure, the prosecution asked that the appeal be dismissed because it was not supported by the record. Conceding that it had no evidence that was unavailable at the time of the first proceeding, the prosecution asked for a second opportunity to show probable cause, indicating it would add only evidence that we believe *215 was properly characterized by the dismissing judge as cumulative. Defendants, who were acting through retained counsel, objected. Under these circumstances, we find that the examining magistrate properly put a stop to harassing tactics and ordered that the second warrant and complaint be quashed.
Affirmed.
Notes
In an exhaustive law review article analyzing pretrial procedure in the Los Angeles courts, the authors recommend that a prosecutor’s right to refile be restricted. Graham and Letwin, The Preliminary Hearings in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 UCLA L Rev 636 (1971). The authors argue that permitting a second magistrate to review the same evidence in effect fosters a system of collateral review among coequal magistrates and encourages prosecutors to "shop the market for a sympathetic magistrate”. Id., 735. The article urges the California courts to adopt a system of appeals for prosecutors and to bar the reintroduction of charges in the absence of good cause.