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Recently, the NY Court of Appeals ordered a new trial in Harvey Weinstein’s case.

The incumbent Manhattan DA, Alvin Bragg, has said, via a spokesperson, that he will do everything in his power to re-try the case. His office also said that they would prosecute him again, ‘provided his accusers are willing to come forward again’.

But this surprises me. This makes it sound like the DA’s office still has some prosecutorial discretion in the matter. However, I thought that a court-ordered re-trial meant that the DA’s office couldn’t decline to bring charges, regardless of the reason.

That has sparked the question in the title, which I will repeat: when a court has ordered that a defendant be re-tried, can a prosecutor choose not to file any charges against a defendant?

I don’t see how the order could be complied with if the prosecutor chose not to bring the case to court again.

Thanks in advance for any answers.

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A prosecutor always has the discretion to end a prosecution: before charge, pre-trial, mid-trial. The phrase that a new trial is ordered is not an order for the prosecutor to complete a new trial; it is an order that the outcome of the first trial is nullified, without the Court of Appeal dictating the outcome in its place — to determine the new outcome, a new trial would be required. It is an alternative to ordering the accusatory instrument to be dismissed.

The alternative orders to a new trial would be:

  • to dismiss the appeal (leaving everything as is)
  • to dismiss some of the counts
  • to dismiss the accusatory instrument (to preclude a new trial)
  • to return the action to pre-pleading status (where there had been a guilty plea)

Other systems may have made different choices about how to phrase the wording of the available orders after appeal. Maybe some of the wording is even redundant with what one's expectations would be.

For a comparative perspective, the options after a successful appeal of a conviction in Canada are:

Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

This has never been understood to order the Crown to follow through with a second trial.

I see you phrased your question as whether the prosecutor could "decline to press charges" or "choose not to file any charges." Where a new trial is ordered, that is not dismissing the accusatory instrument (information, or indictment, etc.). No charges need to be laid. They already have been laid and are still active. The discretion the prosecutor retains is the discretion to discontinue.

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  • Wait, why does a new trial need to be ordered? If a conviction is vacated/reversed, and the court orders nothing else other than that (e.g. it doesn’t order dismissal of the charges), isn’t it obvious that the prosecutor can seek a new trial if they so wish? Why the need to explicitly order a new trial? It sounds superfluous, because vacating someone’s conviction on its own doesn’t preclude a new trial. There is no need to vacate the conviction and, on top of that, order a new trial, as I see it. Commented Apr 27 at 12:30
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Not only can a prosecutor decline to retry a case, they are required to decline if there's a reason, like knowing/believing they cannot meet the burden of proof required.

If prosecution declines to prosecute, the court cannot force them to, as without the prosecution bringing the case, the court has no jurisdiction any more.

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