Martha Stewart's case illustrates a wide variety of prosecutorial decision-making. We have defended the U.S. Attorney's decision to investigate and prosecute Stewart, but called into question the further decision to charge her with five counts. As a way of curtailing the redundant charging phenomenon, which is widespread, we have suggested that the courts develop a law of counts to cabin prosecutorial charging discretion. Thus, our proposal to create a law of counts would not require prosecutors to act against their short- or long-term interests. Rather, it would be implemented by judges using the interpretive method, without going so far as to confer on them an undefined "nullification" authority. If instituted wisely, it could have a significant impact on prosecutorial discretion without unreasonably curbing it or preventing government from bringing bad people to justice.
Michael L. Seigel & Christopher Slobogin, Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts 109 Penn St. L. Rev. 1107 (2005-2006), available at http://scholarship.law.ufl.edu/facultypub/72