Thousand-Count Indictments no Longer Provoke Much Notice

On September 3, an Ohio prison inmate named Ariel Castro reportedly hanged himself with a bed sheet in his prison cell.  Castro thus robbed the State of Ohio of its opportunity to take his life naturally.  Castro had been sentenced only weeks earlier to life without parole plus a thousand years.  Castro’s crimes stemmed from his kidnapping of three young women between 2002 and 2004 when the women were 14, 16 and 20 years old, and his confinement of them in various rooms of his house for years.

By all evidence and appearances, Castro was mostly a despicable human being.  A government employee when he worked at all, Castro confined his three victims in brutal conditions and in chains and repeatedly raped, beat and starved them.

But the bizarre facts of Castro’s case were equaled by the bizarre number of criminal charges that the State of Ohio brought against him.  On July 12, 2013, prosecutors unleashed an indictment against Castro charging him with almost a thousand felony counts.  977 to be exact: 512 counts of kidnapping, 446 counts of rape and seven counts of sexual abuse.  Two counts of aggravated murder stemmed from allegations that Castro beat one of the women so savagely that she miscarried.  The indictment alleged Castro carried out this murder after premeditation, meaning that Castro would be subject to the death penalty if convicted.  There were also six counts of assault, three counts of child endangerment and one count of possessing criminal tools.  Bail was set at $8 million.

Castro’s indictment was probably one of the lengthiest in American history.  Yet its astounding length mostly escaped much comment in the press.


The vast majority of criminal indictments filed in the 1700s and 1800s accused a single defendant of a single offense.  Because lay citizen grand jurors—nonlawyers—wrote up most criminal indictments in early America, such documents were mostly self-limiting in terms of length and complexity.  The takeover of the grand jury system by government prosecutors during the twentieth century led to an explosion in lengthy and complicated indictments.  Arguably, this phenomenon has also incentivized lawmakers to enact increasingly lengthy and complicated criminal laws.

Studies show that multi-count indictments greatly increase the likelihood of conviction.  According to Professor Andrew Leopold, criminal defendants who are tried on a single count are convicted by juries about two-thirds of the time.  Thus, some 33 to 35 percent are acquitted.   But those tried on more than one count are “more likely to be convicted of something.”  Even more significantly, writes Leopold, “as more counts [a]re added, defendants [a]re also more likely to be convicted of the most serious charge against them.”

A trial on the indictment against Ariel Castro might have taken years.  But then the indictment—like many modern criminal indictments—was designed to insure that no trial would ever take place.  In modern practice, the state almost always agrees to drop some of its charges in exchange for guilty pleas to others.  And modern defense lawyers spend most of their time merely negotiating over their clients’ sentences.   In Castro’s case, prosecutors agreed not to seek the death penalty in exchange for Castro’s guilty pleas to 937 counts.

At one time there were precedents in many jurisdictions forbidding prosecutors from piling on counts in a single prosecution.  For example, the Iowa Supreme Court held in 1881 that an indictment must state but a single offense.  But when faced with the emerging onslaught of multi-count, multi-defendant prosecutions during the early twentieth century, judges shrank rather than muster the courage to face down ambitious prosecutors.

In 1936, a federal judge in Texas wrote that “[t]here was a time when the nicety of pleading demanded an avoidance of so-called multiplicity or duplicity.  I would not like to say that that time has wholly disappeared, but I do say that felonies and misdemeanors may now be joined.”

A few hours in a law library will substantiate the growth of multi-count and multi-defendant prosecutions over the past century.  Today, roughly half of trial defendants are charged with more than one count, and a third are tried jointly with codefendants.   Indictments running to more than 50 pages and containing 80 counts or more are not unusual in federal court and in many state courts.   Some indictments are now so complicated that they begin with lengthy indexes or tables of contents.  The indictment against Ariel Castro was 576 pages long.

There are cases (mostly from decades ago) where courts held that a complicated prosecution overwhelmed a jury’s ability to deliberate.  But with each passing decade, the burden of multi-count, lengthy criminal indictments grows more crippling.  When defendants request that counts be divided into separate cases, trial judges need only point to the body of previous lengthy indictments as precedents.  “In reaching our determination that appellants were not unduly prejudiced by the length and complexity of the joint trial,” wrote the U.S. Eleventh Circuit in 1982, “we are guided by recent cases of similar magnitude that have rejected the same argument.”

When it becomes clear that a defendant insists on his innocence and intends to take accusations to trial, prosecutors are known to double down on their allegations and file lengthened, “superseding” indictments, usually adding more pages of accusations.

When prosecutors file superseding indictments, judges shockingly allow prosecutors to try defendants according to any one or a combination of the indictments on file in a case, so that defendants may not even know what charges to prepare for at trial.  “[T]he government may elect to proceed on any pending indictment,” wrote the U.S. Ninth Circuit in a recent opinion, “whether it is the most recently returned superseding indictment or a prior indictment.”

Forget for a moment that Ariel Castro was a loathsome, wretched individual who was probably deserving of little sympathy.  On display in Castro’s case were some of the darkest trends in modern American criminal procedure.  Americans no longer have criminal courts that operate according to adversarial law.  Rather, every practitioner in the courtroom—from the judges to the bailiffs to the judges’ clerks to the court reporters—are arrayed against the individual rights of criminal defendants.  Video of Castro’s arraignment shows Castro’s own “defense” lawyers urging Castro to open his eyes and look up so as to give the (almost certainly false) impression that Castro fully understood the 977 separate charges against him—and thereby to make the arraignment proceed more efficiently for the government.

Castro’s alleged defense lawyers even waived the reading of the indictment.  Thus, the judge was relieved of the duty of actually reading every word to Castro in open court.  Such a reading would have taken all day—and might have angered the judge.  But if the defense had insisted on it, there would probably never be another nine-hundred count indictment filed in that judge’s court. 

Castro’s chances of beating the rap at a trial, of course, were probably nil.  But there may have been something almost heroic in the act of a defense attorney trying to defend a client from a thousand-count indictment.  Castro’s lawyers could have demanded a speedy trial and bravely, with chins held high, put on a years-long cross-examination regarding each element of each count, impeaching every prosecution witness to produce doubts regarding every point.  Memories could be challenged with regard to dates, places, and other details.


And there might have even been a chance that jurors asked to sacrifice months or years of their lives in order to convict a defendant of hundreds of charges might balk—or use their verdict to show their outrage at the government.  This kind of thing has happened in a couple of the longest trials in history.  The New York Times reported in 1990 that the longest trial in American history was the then-current trial of a nursery school operator charged with 65 counts of child abuse.  The trial lasted 30 months and ended in a verdict of not guilty on 52 counts and deadlocks on 13 others.   The 1988 trial of 20 alleged members of the New Jersey Lucchese crime family in which the defense quickly rested without calling a single witness lasted 21 months before a federal jury acquitted the defendants on all 77 counts.  (A single prosecution witness had spent several months on the stand.)  A multi-count trial of Oakland cops lasted a year and produced a jury that deliberated for four months.  (The jury acquitted on 8 counts and were unable to reach a verdict on the remaining 27 counts.)  Some observers believe this phenomenon played a role in the acquittal of O.J. Simpson in 1995, by a jury that was sequestered (kept hostage in hotel rooms) longer than any other jury in California history (11 months).*

THE LOSS OF THE RIGHT TO SPEEDY TRIAL[amazon asin=0609809636&template=*lrc ad (right)]

Not only do long, complicated, multi-count indictments increase the likelihood of convictions.  Multi-count indictments also provide a means for the government to evade the Speedy Trial Clause of the Sixth Amendment, a constitutional provision that originally acted as something of a brake on the charging decisions of prosecutors.  Generally speaking, a prosecutor in early America had to try his case within sixty days of filing criminal charges.  This was an ancient protection enunciated in the Magna Charta and probably predating it.

Under the Speedy Trial Clause’s original meaning, prosecutors would have been reluctant to bring complex or multitudinous charges.  But the Speedy Trial Act of 1974—passed by Congress in order to construe the Sixth Amendment right—allows the suspension of the right to a speedy trial upon the mere declaration by a judge that a case is “complex.”  Federal judges have not only upheld this Act; they have enthusiastically pronounced hundreds of cases to be complex for purposes of evading the Speedy Trial clock.  But the same judges who pronounce a case “complex” for purposes of gutting speedy trial rights generally pronounce the same cases to be not so complex as to require separation of counts or other limitations upon the prosecution.

*Note that the indictment in O.J. Simpson’s case was comparatively brief, charging only two counts of murder.  The trial’s great length was owed to other factors.