Double Jeopardy?

[SoulFrost]

I used to know a guy who did something really naughty--he killed a man.

This guy was convicted and sentenced to 40 years in prison. Due to various programs in force at the time, he was earning something like 5 to 1 time (every day that he spent in jail took 5 days off of his sentence.)

Eight years later, the guy was walking around free. He got a girlfriend, a job, started college....

Then one day the police picked him up. He again went to court, and was sentenced to Life in prison.

He's there now.

Don't get me wrong--I knew the guy well, and he was smegma. What he did was inexcusable (though there is a story behind it...) and he deserves punishment.

But how can this be? How is it possible to be sentenced twice for the same crime?

-David

[LucyVanPelt]

Was he on parole? Maybe he did something that otherwise minor got him a parole violation and he had to serve his full sentence.

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Keep smiling it makes 'em wonder what you've been up to.

[SoulFrost]

That's what I thought at first, Lucy, but then I remembered that the original sentence was "only" 40 years (and that was considered served when he was released.)

The second sentence was for Life.

So you can see why I'm a little confused....

-David

[Bricker]

The Constitutional protection against double jeopardy prevents three things: a second trial for the same offense after an acquittal, a second trial for the same offense after a conviction, and multiple punishments for the same offense.

What you describe seems to flout that.

Now, as suggested above, if his release from prison was a parole, or if his sentence included some years of probation following the imprisonment, then things change a bit.

For example: is it possible that his original sentence was something like "100 years in prison, with all but 40 years suspended?" That would never be a valid sentence in Virginia, but who knows what some crazy states might do. In that event, he's got an effective sentence of forty years. He does his time and earns his sentence credits, and gets out in eight.

Then he violates parole somehow, is picked up, and the suspended sentence is re-imposed, along with some sentence for the underlying crime that caused him to violate?

It's not exactly what you describe -- but what you describe is, in fact, a violation of double jeopadry, so I don't believe it coul happen in the United States, or that it would survive an appeal.

But one of the great things about this Land of the Free (so to speak) is that all these cases are a matter of public record. No adult is sentenced or imprisoned in secret.

So if you'd like, provide the name of this fellow and the state in which it happened, and I can check it out and tell you exactly what the sentence was.

- Rick

[Gazoo]

I know this is adding hypotheticals to an already stated issue, but reading this topic reminded me of a problem posed by a professor of mine once (I believe there was recently a movie with Tommie Lee Jones that contained the same issue but I didn't go see it). The scenario: A man pushes his wife's lover off of a ship they are all aboard. The lover's body is never found. The man is still tried and convicted of murder. He serves his time and is released. Once back in the real world, he runs into the lover (who somehow survived). Enraged, he kills him "again." Now, can he be tried (and convicted) for murdering the same man twice?

[G.B.H. Hornswoggler]

Originally posted by Gazoo:
I know this is adding hypotheticals to an already stated issue, but reading this topic reminded me of a problem posed by a professor of mine once (I believe there was recently a movie with Tommie Lee Jones that contained the same issue but I didn't go see it). The scenario: A man pushes his wife's lover off of a ship they are all aboard. The lover's body is never found. The man is still tried and convicted of murder. He serves his time and is released. Once back in the real world, he runs into the lover (who somehow survived). Enraged, he kills him "again." Now, can he be tried (and convicted) for murdering the same man twice?

I'm sure our various lawyers will pop up with more specific information, but, in general, the answer is yes. A crime is defined much more specifically than "killing that guy." If you kill John Doe once by shooting him on the Empire State Building on June 13th, 1998, and then kill him again by drowning him off the Staten Island Ferry on March 6th, 2000, the two are separate events and you can be tried for both of them.

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...but when you get blue, and you've lost all your dreams, there's nothing like a campfire and a can of beans!

[Gazoo]

My answer to the professor was, yes he can be tried and convicted again. They are separate acts (actus reus) with separate mental states (mens rea). I added that it would seem he could have the previous conviction overturned based on new evidence (not that it would mean that much after serving the time, but especially if the sentence would be greater for a second offense it could make a difference). A question I posed back to him was whether or not the earlier conviction could be introduced into evidence by either other side.

[DSYoungEsq]

Understanding why SoulFrost's person was sent back to prison would require WAY more information than had been provided. At this point, answering the question would involve guessing.

[Bricker]

Clearly, the best strategy would be for him to seek to vacate the first conviction before the second trial. He can always move for a new trial for the first offense on the basis of newly discovered evidence. In these circumstances, I can't see the Commonwealth opposing the motion to vacate the first conviction.

Obviously, if the first conviction is no more, then it can't be introduced at his second trial.

But assuming, for whatever reason, that the first conviction is not vacated, could it be introduced against him?

Well, in general, it's 404(b) evidence - a prior bad act. It's inadmissible to show a propensity to commit the current crime. In other words, the prosecutor can't use the prior conviction to show that he likely did the current killing.

The prosecutor can admit the prior bad act if it's evidence of a common plan, scheme, or motive, and if the probative value of the evidence outweighs its prejudicial value. This determination would rest with the judge, but I suspect it would be excluded. Of course, it depends on the specific facts of the case.

If the accused takes the stand, he may be asked if he has a prior felony conviction, but not what it is. This is admitted only as relevant to the credibility of the accused, not his likelihood of having committed the current crime.

Finally, as a strategy decision, I'm not so sure that I wouldn't want the jury to hear about the first conviction anyway. Again it depends on the facts, but maybe the jury's sympathy would be piqued, given the years spent in jail for a crime that never really happened, and they'd give him a pass on the instant case.

If this is a "Ha, ha, I faked my own death" case (as I understand the movie was), the above is a good strategy decision. If it's "Pushed overboard by the accused, presumed dead, but actually struggled to survive on a deserted island for ten years before being rescued and returned to society only to be then killed"... I might not want the jury to hear it.

- Rick

[Gazoo]

Thanks for the insight. When I posed the question back to my professor regarding introducing the prior conviction he said he'd have to look into that. I don't know if he did, but he never got back to me. It struck me as one of the only times I could see a defendant actually WANTING to get a prior conviction (especially for the same crime, murder) introduced.

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"In this life you must be oh so smart, or oh so pleasant. For years I was smart. I recommend pleasant." -Elwood P. Dowd in "Harvey"

[Bricker]

Actually, you still raise an interesting point: what if the defendant wanted to introduce the prior, and the Commonwealth opposed it?

To the extent it goes to his state of mind, which might be relevant if he's being charged with a specific intent crime, I would say he's entitled to raise it. (Naturally, he may not then complain on appeal that it shouldn't have been raised).

Even if it's excluded in limine, a crafty defendant might get it mentioned with a harpoon during his testimony...

Not that an ethical lawyer would want such a thing, of course.

- Rick

[Gazoo]

Ethical lawyer??? That's a joke right? :) Another issue would be if the original conviction was vactated, could the defendant introduce the fact that he wrongly served however many years in jail?

[Diceman]

Another issue would be if the original conviction was vactated, could the defendant introduce the fact that he wrongly served however many years in jail?
Judges usually give credit for time already served. I don't think it's too much of a stretch to get credit for time served while wrongly convicted of the victem's murder. Then again I'm not a lawyer. I'm ethical :)

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--It was recently discovered that research causes cancer in rats.

[UncleBeer]

At this point, answering the question would involve guessing.
DSY, when the hell has this ever stopped us?
he was earning something like 5 to 1 time (every day that he spent in jail took 5 days off of his sentence.)
Why can't I get a deal like this at work? I wouldn't mind working only one day a week.

[SoulFrost]

AHHHH! I'm not really sure exactly what all you said, Rick, but I think I get the gist of it.

He was convicted, challenged the conviction and won a new trial, then was re-convicted at the new trial (with a stiffer penalty?)

I was unaware of much of that--thanks for enlightening me!

As for your editorial at the end, what exactly, did you mean? Sorry, but I'm legally stupid (take that any way you want to, folks....)

:)
David

[Bricker]

He was convicted, challenged the conviction and won a new trial, then was re-convicted at the new trial (with a stiffer penalty?)

Yes, except that I'm not sure what the original penalty was, so I can't answer the question about his getting a stiffer penalty this time.

As for your editorial at the end, what exactly, did you mean? Sorry, but I'm legally stupid (take that any way you want to, folks....)

Apologies. That really was kind of obscure. In the old days, common-law "writs of error," were the only way to direct an appeals court's attention to errors at the trial.

In recent years, the writs have mostly been replaced by statutory post-conviction review processes.

It would be unusual, in my experience, for a writ of habeas corpus to be used at the state level to overturn a conviction at the state level, because the state should have its own post-conviction review process. It's still quite possible, but usually any errors are brought up during the normal appeals process.

OTOH, it's very common to see such a writ used in federal court to attack state convictions. In that context, it is used not to challenge the guilt or innocence of the person held in custody, but whether the custody itself is unlawful under the U.S. Constitution. Common grounds for a habeas corpus writ include a conviction based on illegally obtained evidence, a denial of effective assistance of counsel, or a conviction by a jury that was improperly selected and impaneled.

Coram nobis was an obscure writ of error, designed to bring a superior court's attention to errors at trial. So when I jokingly mentioned it, I was suggesting that Texas isn't up to speed as far as modern post-conviction review procedures go.

Pretty hilarious now, huh? :)

- Rick

[SoulFrost]

LMAO, Rick! &nbsp :)

Thanks for clearing that up.... I just have to say thanks again--I've been mildly wondering about the case for the past year or so, and you figured it out in about 5 minutes.

But hey...whattaya mean Texas isn't up to speed? I thought we were leading the nation on executions!

;)

-David

[Little Nemo]

Actually, you still raise an interesting point: what if the defendant wanted to introduce the prior, and the Commonwealth opposed it?

My guess is he would be allowed to introduce it. The defense is generally allowed a much broader range of evidence than the prosecution. So I suppose if the defendant was on trial for murder and wanted the jury to know he had been convicted in the past for attempting to kill the same victim, he'd be allowed to. Why he would want to is another issue. Maybe he heard about the free cable TV you get in prison.

[Gazoo]

Originally posted by Little Nemo:
Why he would want to is another issue.


In the scenario we were discussing, the defendant may want to intorduce the fact that he already served time for the murder of the same victim to influence the jury.


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"In this life you must be oh so smart, or oh so pleasant. For years I was smart. I recommend pleasant." -Elwood P. Dowd in "Harvey"

[Gazoo]

Originally posted by Diceman:
Judges usually give credit for time already served. I don't think it's too much of a stretch to get credit for time served while wrongly convicted of the victem's murder.


I thought about this one last night, Diceman. I don't think the "time served" avenue would work. That's be like giving everyone who wrongly served time some sort of "prison credit." Can't you just see some guy serving two years only to be exonerated. Since he has a two-year time served credit, he can then go knock off the loacal 7-11 with no repercussions.

[manhattan]

Bricker made a specific factual assertion which may be restated thusly: "It is a violation of the Ethics Code of each state’s Bar Association to encourage a witness to make a statement which the attorney knows is inadmissible as evidence and prejudicial to the case."

A proper refutation, if one exists, would be something along the lines of "Your statement is incomplete. Whilst an attorney may not coach a witness to make such a statement, the rules do allow him to fail to coach the witness not to make the statement and hope for the best. So to say an ethical lawyer ‘would not want such a thing’ is misleading."

An improper (for this forum) refutation is "Lawyers are not ethical and the whole system is set up to benefit them."

And of course I censored nothing. Your statement is still there for all to see.

Hope this helps.

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[Bricker]

To Manhatten's able commentary I will only add this: buried in the depths of this rant is actually a question of some merit: from whence comes the attorney-client privilege? It's not a Constitutional right, after all.

If there is genuine interest in the answer, I'll answer it. If, as seems likely, it's just a hook upon which to hang your dissatisfaction with the world of defense lawyers, then I'll save myself some time.

- Rick

Originally posted by AvenueB-dude:
A lawyer would do anything to get his guy off even if the guy tells the lawyer he did it. That is what gets the the most, there is no mention in the Constitution about this rule that anything the lawyer learns cant be used against the guy, but who makes up the rules? RIGHT! Judges and lawyers. Even in Congress most people are lawyers. They all have a self interest to keep the corrupt system going. So if a guy actually confesses to the murder to his lawyer and says where the murder weapon is the lawyer won't even tell the police, and for this he is "ETHICAL."

[SoulFrost]

You can do that, Bricker? Care to share your sources for looking this sort of thing up?

OK, since it's already a matter of public record, I guess it's ok to post the guy's name.

His name is Ryan Martin from Carthage, TX (Panola County). The first sentencing was about 9 years ago, and the second was maybe a year or so ago.

I assume that he's currently in the Texas State Penitentiary in Huntsville, TX.

On reflection, I'm sure that some of the information I got was second-hand. I might have been told "He'll be in for the rest of his life" when the person actually meant 40 years.

So, Bricker, if you would find out the particulars, I would certainly appreciate it!

:)
David

[Bricker]

State of Texas v. Ryan Gary Martin

From my first look at this, it appears Mr. Martin was convicted of capital murder in 1994 (case 1994-C-079-CCLA).

He won release in May of 1998 via a habeas corpus petition decided by the Court of Criminal Appeals (case 73,076). He was re-tried in the 123rd District Court and convicted (case 1998-C-094), appealed to the 12th Court of Appeals (case number 12-99-00075-CR), his conviction was affirmed Janaury 31st of this year, and the matter is currently pending a Motion to Rehear the appeal.

I haven't read the opinions yet; however, one thing is certain: Mr. Ryan did not "serve his sentence and walk away." He collaterally attacked his original conviction, and had it overturned. So while he did get to walk around free, the state was free to re-try him. The Court of Criminal Appeals decided that his original conviction was flawed, which doesn't mean that he sreved his sentence -- just that, for whatever reason, he didn't get a fair trial. If he told his friends he had served his time and was out for good... he was lying.

Anyone out there who knows anything more about Texas should please chime in -- don't they have a better vehicle than habeas for collateral review? What's next - a writ of coram nobis, fer cryin out loud?

Anyway, I'll keep looking when I can get my hands on Lexis. But all of the information above is available, free, from the Internet. :)

- Rick

[AvenueB-dude]

Originally posted by Bricker:
Not that an ethical lawyer would want such a thing, of course.

HA! AS IF!

A lawyer would do anything to get his guy off even if the guy tells the lawyer he did it. That is what gets the the most, there is no mention in the Constitution about this rule that anything the lawyer learns cant be used against the guy, but who makes up the rules? RIGHT! Judges and lawyers. Even in Congress most people are lawyers. They all have a self interest to keep the corrupt system going. So if a guy actually confesses to the murder to his lawyer and says where the murder weapon is the lawyer won't even tell the police, and for this he is "ETHICAL."

Yeah right.

[manhattan]

Oy. One of these days, I’m going to open a thread in The Pit called "Lawyers: Below Pond Scum or Defenders of Democracy?"

And then when one of the legal question threads in GQ degenerates into a "lawyers suck" rant, which they always seem to do, I’m just gonna link everybody there.

But not today. Today I’m just going to say that this is General Questions. In General Questions, we answer questions. Generally. Wise cracks, too, at no extra charge. But we do not go off with off-topic rants. So don’t.


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[AvenueB-dude]

How is what I said off topic? Bricker answered a question wrong by saying that a certain course of action would never happen because lawyers are ethical and wouldn't let it happen. I replied that lawyers are not ethical and gave a specific example of how they are not. You can't let Bricker answer and put his little editorial comments in there and then censor mine.

[Widgets]

Originally posted by Bricker:
But all of the information above is available, free, from the Internet. :)

- Rick
If you dont mind me asking WHERE? I have spent days and all I can find are sites that for $20-$40 will do it for me.

[Bricker]

Originally posted by Widgets:
If you dont mind me asking WHERE? I have spent days and all I can find are sites that for $20-$40 will do it for me.

The entire appellate calendar for Texas:

http://www.info.courts.state.tx.us/appindex/appindex.exe

Just enter search terms.

- Rick

[Bricker]

By the way...

...I can't answer the question about his getting a stiffer penalty this time.

It was remiss of me not to point out that, although I didn't know the exact details of the sentences in this case, some concerns of Constitutional dimension arise when a defendant wins an appeal, is convicted at retrial, and receives a harsher sentence the second time around.

It's a well–known principle that defendants cannot be penalized for exercising their right to appeal. To punish a person because he has done what the law plainly allows him to do is a due process violation.

In order to insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions.

In North Carolina v. Pearce, the Supreme Court said that when a defendant is sentenced to a longer term after retrial, the reasons for the greater sentencemust be laid out in detail. They must be based on objective information about actual, identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

In other words, the judge imposing a harsher sentence has to have a good reason, and it has to be based on something the defendent did after the original sentencing.

- Rick

[manhattan]

Originally posted by Bricker:
In North Carolina v. Pearce, the Supreme Court said that when a defendant is sentenced to a longer term after retrial, the reasons for the greater sentencemust be laid out in detail. They must be based on objective information about actual, identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

In other words, the judge imposing a harsher sentence has to have a good reason, and it has to be based on something the defendent did after the original sentencing.

- RickI'm a little unclear here. Are you referring to conduct by the defendant which occurs following the first sentencing or to conduct which preceded the first sentencing but which was discovered following it?

It seems a little unfair to penalize a defendant for conduct which had not yet occurred at the time of the crime for which s/he has been tried. It also seems unfair not to penalize him/her for after-discovered conduct (between trials we learned that he tortured him before the murder, etc.).

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[Bricker]

At sentencing, the total picture may be taken into account. This includes previously unknown information (the PSI was unavailable or incomplete at the first sentencing hearing) or conduct that occurred between the first and the second trials, since a judge is entitled to consider repentence (or lack thereof) in fashioning his sentence. This latter may seem unfair, but perhaps this makes it clearer: the jury announces "guilty" and the accused stands up and says, "Yeah, I did it, you m-f-ers, and I'm not sorry either. And I swear I'm going to get you, judge, and you, prosecutor, so you better watch your backs!"

This is, of course. conduct that happens after the original crime. And the judge is certainly entitled to treat this defendent differently than one who sincerely says, "Your Honor, I apologize, and I realize how wrong I was. And I hope your sentence includes restitution, but even if it doesn't, I will personally pay back every cent I took, no matter what."

I should have noted the host of decisions subsequent to Pearce that refined how the presumption of vindictiveness may be rebutted. Basically, though, if a judge discovers the original sentence was based on inaccurate or incomplete information, he may impose a harsher sentence. Under Pearce, he's created the presumption of vindictiveness, but he may rebut that presumption by showing, objectively, what information caused him to change the sentence, and how it was wholly unrelated to the successful appeal.

If a judge bases his harsher sentence on conduct occurring after the first trial and sentence, the presumption does not arise.

Hope that clears it up!

- Rick

[handy]

He may have got a third strike on some probation violation. Thus, life.

There is a video out right now with the same name, Double Jeopardy, worth seeing, it has a nother take on this.

[Otto]

To Manhatten's able commentary I will only add this: buried in the depths of this rant is actually a question of some merit: from whence comes the attorney-client privilege? It's not a Constitutional right,

after all.

If there is genuine interest in the answer, I'll answer it.



I don't know the specific case, but my understanding is it is derived from the Sixth Amendment's guarantee of the assistance of counsel in all criminal matters. Effective counsel can't be rendered if the attorney for the defendant may be compelled to reveal information given to him or her by the defendant.