Limit The Power of The Prosecution

How does shoplifting become armed robbery?Those of you who follow my blog know that I attempt to highlight our criminal laws and their sometimes inappropriate application in our criminal justice system.  The uninitiated might conclude that as a criminal defense attorney, I complain about all prosecution and think that unless I’m winning, everything must be unfair.  I assure you all that is not the case.  I have a deep respect for law enforcement and more importantly, our institutions of justice.  Being in the courts day in, day out, however, I find that too often prosecutors prosecute simply because they believe they can, and not because a common sense approach would suggest they should.

How Shoplifting Became Armed Robbery

One such case has crossed my desk recently.  I represent a man accused of armed robbery.  Armed robbery is a capital offense punishable by up to life in prison.  It is alleged that my client shoplifted some items from a local department store.  It’s alleged that after passing all the registers without paying, he was stopped by security.  This man was escorted to the loss prevention office in the back of the store.  The misbegotten property was taken from him and he was physically restrained to a bench in a room with a closed door.  It’s alleged that once he was told the police were on their way, he grabbed a scissors off the desk and threatened the security guards to let him leave.  They did so, and he was prosecuted for armed robbery.

Determining When The Offense Occurred Matters

We all know the classic armed robbery involves a person with a weapon threatening another person to give up property or be subjected to violence.  It’s commonly referred to as the “stick up”.  This case is fascinating because it is not in dispute that what my client is really alleged to have done is shoplift; a relatively minor crime that does not carry severe penalties.  Instead, the prosecution has charged this man with armed robbery on the theory that because at any time before reaching a position of safety or while attempting to maintain possession of stolen property, the defendant used a weapon it still falls under armed robbery.  Our position is clear:  once he was taken into the loss prevention office, taken behind a closed door, merchandise was removed from him, and he was physically restrained to a bench, the crime of shoplifting was complete.  At that point, any criminal activity conducted by my client is separate from the shoplifting.  For that reason, we believe he can only be charged with shoplifting and possibly assault with a weapon as a separate charge.

Limits on Proseutorial Power

The reasoning for this is simple.  To follow the prosecution’s reasoning, there seems to be no limit to when the government can elevate shoplifting up to armed robbery.  Think of the hypotheticals like after the police arrive at the store to arrest the defendant.  If they put him in the back of a squad car, and the accused begins kicking the windows of the car out in an attempt to escape, they might argue that he is using force in an attempt to flee, and therefore the shoplifting is now armed robbery.  Or take it further.  If the defendant is held in the loss prevention office, arrested by the police, transported by the police to the jail and is now sitting in a jail cell, is he committing an armed robbery if he then uses a weapon to assault a jail guard in an attempt to escape?  This absurd reasoning seems to be at work in the case I’m working on.

It seems that we all benefit as a society when our prosecutors are given more specific limits on their power.  In my experience, open-ended laws lead to abuse.  And that abuse can often take the form of charging people with massive crimes when common sense suggests their crimes are not massive.  Hopefully, the result in this case will be a favorable one.

The Equalizer for The Defense

If you, or someone you know and care about is in a situation similar to the one shared in this blog post, please contact me.  I am your Equalizer for The Defense.

Contact Jose R. Fanego Attorney For The Defense