I think the hypothetical needs some fleshing out before we can form any conclusions. Allow me to illustrate:
Chronos proceeds to trial. His sole defense theory is that the “prosecution didn’t prove its case.” His attorney attacks the credibility of the eyewitness testimony, puts on no evidence, and rests. His summation stresses criminal law basics: reasonable doubt, unreliability of eyewitness testimony.
Chronos’s counsel offers to stipulate that he shot at his wife. For whatever reason, that’s not on the menu for the jury–the prosecution has to prove that he killed her. While the prosecution rejects the offer to stipulate: without that there’s no juicy eyewitness testimony, after all. So Chronos takes the stand. He admits to shooting her, but claims it was only a flesh wound. His lawyer points out that the prosecution didn’t produce a body. She shows up in court on the last day of trial.
Chronos relies exclusively on an affirmative defense: self-defense. He puts on good evidence that his wife was packing and had made public threats to kill him earlier that day.
In each case, he is acquitted. In each case, she dies soon thereafter (just in case, btw, she dies less than a year and a day after the original incident).
As I read *Ashe * in case 1, he doesn’t have a collateral estoppel defense. But in cases 2 and 3, he does:
Of course, he still has a plain old double jeopardy defense, right? He’s been acquitted of killing his wife. Then he gets charged again with killing her. We don’t even need to look at *Blockburger * to know that it’s an identical charge. So he’s still safe, I think.
You’re right. I glossed over the Ashe application of collateral estoppel here, knowing that regardless of the effect of collateral estoppel, a subsequent reprosecution was barred by Blockburger. But your post is right on the money – an acquittal is an acquittal on each and every element of the charge that a rational jury could have, on the record, rejected.
I suspect that’s why there are so few collateral estoppel cases:
It’s relatively rare for a defendant to avoid the more general bread and butter arguments, which muddy the water for a later collateral estoppel claim. After all, who expects a subsequent prosecution?
There’s a lot of overlap with regular double jeopardy.
OTOH, crim pro professors love that stuff, or at least mine did.
Rick, you might want to point out that, in this case, when the original conviction was overturned, the Virginia Supreme Court allowed the state, if it wished, to reprosecute on a charge of non-capital first degree murder (Powell v.
Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001)). So, the court in Virginia had already decided that double jeopardy didn’t preclude reprosecution on the charge of murder (non-capital). But when the newly discovered evidence (the scarlet letter, if you will) came to light, the original indictment was dismissed nolle prosequi, and a new indictment charging capital murder during the rape of Stacey was procured from the grand jury. It was on this second indictment that he was convicted. The second conviction was sustained by the Virginia Supreme Court in Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537 (2004).
Now, the opinion in Powell II is troubling, to a small extent in the double jeopardy context, but to a larger extent because of the way the court simply dismisses the collateral estoppel issues with a blythe wave of the hand. From a double jeopardy standpoint, this concept that you can take the same crime and split it up into infinitisemal parts, and attach meaning to each part so that charging one part doesn’t preclude a later charge on the other part is mildly troubling. In Powell’s case, the Virginia courts have established that, where there is a statute listing multiple different aggravating circumstances (for punishment issues; what the courts in Virginia call “gradation offenses”), each such aggravating offense is a seperate critter for double jeopardy purposes. So I can try you for capital murder during a rape, and, should I fail to get a conviction, charge you with capital murder during a robbery, and I’m not barred by either the Fifth Amendment or by Virginia’s similar constitutional bar to double jeopardy. Where does this end? I could simply split up almost any crime similarly: embezzlement through use of a computer, embezzlement through use of a pen, embezzlement through use of a phone, etc. Yes, I’m being facetious, but the point remains that, avoiding the issue of double jeopardy this way smacks of simply trying to avoid the “bad” aspects of a civil right through legal loopholing.
This becomes doubly troubling when we read how the Virginia Supreme Court dealt with Ashe. Here is what they said:
Now, that all seems quite fine; we recognize that the Commonwealth didn’t intentionally choose to avoid a prosecution on the basis of murder during rape of Stacey while prosecuting on the basis of a murder during the rape of Kristie. But the combined effect is this: the state charged capital murder, failed to prove its case, then got a second bite at the apple to prove essentially the same thing. Ignoring for the moment how the evidence came to light (dumb idiot :smack: ), suppose this evidence came to light benignly? Suppose we aren’t talking capital murder, but something much less onerous? Isn’t this sort of situation pretty much a poster child for what the state isn’t supposed to be allowed to do?
And lest we go down the road that it’s only what the bastard deserves, let’s change the facts just slightly: Let’s suppose the defendant is black, and this is Alabama, and the year is 1965. The good ol’ boys have framed the defendant to protect one of their own. Wonder of wonders, he manages to get the conviction thrown out because the good ol’ boys didn’t quite manage to understand the intricacies of the law. But wait!! New evidence is discovered: he was raping STACEY, not Kristie! They try again, and, this time, the conviction is upheld.
Which is, in the end, precisely why the bar to double prosecution exists in the first place. :dubious:
I’m not sure I’d take so dour a view of it. Should you fail to get a conviction by means of an acquittal, then, as I discussed with GFactor above, the Commonwealth is collaterally estopped from re-trying you under any theory of the crime in which they would have to prove an issue that was likely decided against them by the original fact-finder. In Powell, the Commonwealth won at trial, which means that the jury resolved each and every element in their favor.
The Virginia Supremes found as a matter of law that no rational jury could have concluded that the rape of Kristie had the necessary nexus to the murder of Stacie. So that element, and only that element, was off the table. Powell’s guilt was factually determined as to each other elements, a far different conclusion than we would reach had he been acquitted.
This is a good question that nobody has answered yet. Anyone?
I’m sure it’s a crime in itslf, but what would be the maximum penalty?
So, a gangster is tried and found not guilty. Later it is shown that the Judge was bribed, and the jury were threatened. Does this invalidate the original trial. Could you say that he was never in jeopardy in the first place, so a second trial wouldn’t be double jeopardy?
Well, yes, you could say that, since it was said in the staff report that’s supposedly under discussion:
“Finally, it’s worth observing that in order for double jeopardy to apply, you must have first genuinely been in jeopardy. Cook County, Illinois resident Harry Aleman learned this lesson after successfully bribing Judge Frank Wilson to acquit him on murder charges in 1977. After the bribery came to light, Aleman was re-tried on the original murder charges. He raised a double jeopardy defense to this second trial, but the courts ruled that his first trial was essentially a sham, and jeopardy never actually attached. (Normally jeopardy “attaches” – comes into play – the moment the jury is sworn in, or at a bench trial the moment the judge begins hearing evidence).”
The movie Double Jeopardy having been discussed above, I am resurrecting this thread because of a new release: Fracture, starring Ryan Gosling and Anthony Hopkins. Spoilers for the movie follow below, so highlight at your own risk.
[spoiler]In Fracture, Hopkins’ character, Ted Crawford, is acquitted of the attempted murder of his wife; he shot her but she survives in a coma. He then uses his standing as next-of-kin to remove her from life support, and she dies. He reasons he’s safe from re-prosecution because of the double jeopardy clause.
However, new evidence comes to light - specifically, the bullet that was in her body and could not have been removed without killing her. The prosecutor, Willy Beachum (Ryan Gosling), decides to charge Crawford with murder - a different crime than “attempted murder” - which theoretically dodges the double jeopardy problem. Bingo, unrepentant killer gets what’s coming to him.
Only… not.
In real life, Crawford would be safe from reprosecution because of Ashe v. Swenson’s collateral estoppel rule, discussed above. The original trial ended in the film with a directed verdict, which operates just as an acquittal would have. That means the state is collaterally estopped from re-litigating any element of the murder that they had tried, and failed, to prove in the attempted murder trial.
[/spoiler]
Detailed discussion of this without involving massive spoiler box use may not be possible.
