# How Is This Criminal Case \*NOT\* Double Jeopardy? **URL:** \ **Category:** Factual Questions\ **Created:** [April 28, 2014, 12:35pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181 "2014-04-28T12:35:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![HeyHomie](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/heyhomie/32/207_2.png) [@HeyHomie](https://boards.straightdope.com/u/HeyHomie)\ **Post date:** [April 28, 2014, 12:35pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/1 "2014-04-28T12:35:28Z")
[http://www.unionleader.com/article/20140425/NEWS03/140429276&template=mobileart](http://www.unionleader.com/article/20140425/NEWS03/140429276&template=mobileart) TLDR: Guy is charged with felony wiretapping. Guy is convicted, serves nine months. After he’s freed, he appeals (just for the principle of it all, I guess), and his conviction is overturned. Now they’re charging him again, this time over a technicality. How can someone who has both served time and been retroactively acquitted be charged again? If this isn’t Double Jeopardy, I don’t know what is. What am I missing here? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [April 28, 2014, 12:46pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/2 "2014-04-28T12:46:43Z")
IANAL, but I don’t believe an overturned conviction is the same thing as an acquittal for the purpose of double jeopardy laws. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [April 28, 2014, 1:02pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/3 "2014-04-28T13:02:06Z")
The New Hampshire Supreme Court’s holding (pdf) was that the trial court made an error and “Accordingly, we reverse the convictions and remand for a new trial.” ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [April 28, 2014, 1:33pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/4 "2014-04-28T13:33:45Z")
One would presume that if he gets re-convicted that his time already served would apply to whatever sentence he gets. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 28, 2014, 1:46pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/5 "2014-04-28T13:46:42Z")
They can retry him because the original conviction was set aside due to _procedural_ error (that is, an incorrect and prejudicial jury instruction.) > [@](#): > > The Fifth Amendment provides that no ‘person (shall) be subject for the same offence to be twice put in jeopardy of life or limb…’ The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. > > United States v. Tateo, 377 U.S. 463, 465 (1964). In contrast, they couldn’t retry him if the conviction had been set aside due to insufficient evidence or some other error of proof. AIUI it’s unusual that they had to re-indict him but maybe that’s a curiosity of New Hampshire’s criminal procedures. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 28, 2014, 1:55pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/6 "2014-04-28T13:55:33Z")
> [@Cheesesteak](#): > > One would presume that if he gets re-convicted that his time already served would apply to whatever sentence he gets. I think this is an automatic. If they retry him, I think they’re legally obligated that they can’t give him a heavier sentence at the second trial than he was given at the first one. If so, then the heaviest sentence he could be given is the nine months he’s already served. So this is sort of a “heads I win, tails you lose” situation for Mueller. If he’s found not guilty, he’ll have the conviction off his record. And if he’s found guilty a second time, he’s no worse off than he is now. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 28, 2014, 2:02pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/7 "2014-04-28T14:02:10Z")
Why can’t he be given a harsher sentence than nine months? ---
**Author:** ![HeyHomie](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/heyhomie/32/207_2.png) [@HeyHomie](https://boards.straightdope.com/u/HeyHomie)\ **Post date:** [April 28, 2014, 2:40pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/8 "2014-04-28T14:40:43Z")
> [@Little\_Nemo](#): > > I think this is an automatic. If they retry him, I think they’re legally obligated that they can’t give him a heavier sentence at the second trial than he was given at the first one. If so, then the heaviest sentence he could be given is the nine months he’s already served. So this is sort of a “heads I win, tails you lose” situation for Mueller. If he’s found not guilty, he’ll have the conviction off his record. And if he’s found guilty a second time, he’s no worse off than he is now. Then what benefit is there to New Hampshire in re-trying him? Best I can figure is that they’re trying to make an example out of him, but don’t realize they’re wasting taxpayer time & money **and** coming off looking the fool. That, or they have an obsessive need to dot all their i’s and cross all their t’s. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 28, 2014, 2:57pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/9 "2014-04-28T14:57:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Why can’t he be given a harsher sentence than nine months? As I said, I’m not certain this is the case. I know there are many situations like this but I don’t know if it’s universal. I believe the principle is that having the risk of receiving a greater sentence at a retrial would be seen as intimidating people into not appealing their cases. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 28, 2014, 2:59pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/10 "2014-04-28T14:59:16Z")
> [@HeyHomie](#): > > Then what benefit is there to New Hampshire in re-trying him? Best I can figure is that they’re trying to make an example out of him, but don’t realize they’re wasting taxpayer time & money **and** coming off looking the fool. That, or they have an obsessive need to dot all their i’s and cross all their t’s. I don’t know. Perhaps they are hoping to at least preserve some precedent that will help them in future cases. ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [April 28, 2014, 6:01pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/11 "2014-04-28T18:01:00Z")
Protection of the public. Without a conviction on his record, saying “he illegally recorded another person’s phone calls” would be slander/libel. That means there’s no way a future employer (or school, if he goes to college) could be warned of his behavior without opening both parties to a nasty lawsuit. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 28, 2014, 6:16pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/12 "2014-04-28T18:16:23Z")
> [@Little\_Nemo](#): > > As I said, I’m not certain this is the case. I know there are many situations like this but I don’t know if it’s universal. I believe the principle is that having the risk of receiving a greater sentence at a retrial would be seen as intimidating people into not appealing their cases. I think he served nine months, but was _sentenced_ to a longer term originally. As long as the sentencing court doesn’t consider the choice to appeal in their resentencing proceedings it’s not a constitutional problem. In this case, the issue on appeal was not relevant to his sentence so I suspect any retrial would omit the penalty phase and impose the original sentence again. ---
**Author:** ![ThisUsernameIsForbidden](https://avatars.discourse-cdn.com/v4/letter/t/b4bc9f/32.png) [@ThisUsernameIsForbidden](https://boards.straightdope.com/u/ThisUsernameIsForbidden)\ **Post date:** [April 28, 2014, 6:22pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/13 "2014-04-28T18:22:20Z")
You can’t get off on a technicality like in the movies, I guess. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2014, 6:30pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/14 "2014-04-28T18:30:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Why can’t he be given a harsher sentence than nine months? He can be – the sentencing court just has to make an affirmative record of the factors that caused them to impose the longer sentence and show it was not motivated by a desire to punish the exercise of a constitutional right of appeal. ---
**Author:** ![RivkahChaya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rivkahchaya/32/8919_2.png) [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)\ **Post date:** [April 28, 2014, 6:31pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/15 "2014-04-28T18:31:25Z")
> [@HeyHomie](#): > > Then what benefit is there to New Hampshire in re-trying him? Best I can figure is that they’re trying to make an example out of him, but don’t realize they’re wasting taxpayer time & money **and** coming off looking the fool. That, or they have an obsessive need to dot all their i’s and cross all their t’s. So he will be a predicate felon. Being a predicate felon affects all sorts of things-- mainly how harshly you can be sentenced for a later felony conviction, something particularly important if this is a “three strikes” state. Also, in some states, felons can’t vote, and they can’t own firearms (even if the crime was non-violent, like embezzling), and there are a lot of jobs they can’t apply for. Apparently the state feels strongly that this guy needs “felon status.” ---
**Author:** ![runningdude](https://avatars.discourse-cdn.com/v4/letter/r/e9c0ed/32.png) [@runningdude](https://boards.straightdope.com/u/runningdude)\ **Post date:** [April 28, 2014, 6:45pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/16 "2014-04-28T18:45:27Z")
> [@HeyHomie](#): > > [http://www.unionleader.com/article/20140425/NEWS03/140429276&template=mobileart](http://www.unionleader.com/article/20140425/NEWS03/140429276&template=mobileart) > > TLDR: Guy is charged with felony wiretapping. Guy is convicted, serves nine months. After he’s freed, he appeals (just for the principle of it all, I guess), and his conviction is overturned. Now they’re charging him again, this time over a technicality. > > How can someone who has both served time and been retroactively acquitted be charged again? If this isn’t Double Jeopardy, I don’t know what is. > > What am I missing here? His conviction was vacated. This is different than an acquittal. Acquittal means that a jury freely and lawfully declared that someone was not guilty beyond a reasonable doubt. A vacation means that a jury found someone guilty when they should not have based on the law and evidence. A judge will reverse such a conviction, but usually without bias allowing the charges to be refiled. It is not “double jeopardy” because he was in fact originally convicted. Having charges filed again does not put him in any more jeopardy than he already found himself in. ---
**Author:** ![runningdude](https://avatars.discourse-cdn.com/v4/letter/r/e9c0ed/32.png) [@runningdude](https://boards.straightdope.com/u/runningdude)\ **Post date:** [April 28, 2014, 6:49pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/17 "2014-04-28T18:49:41Z")
> [@dstarfire](#): > > Protection of the public. Without a conviction on his record, saying “he illegally recorded another person’s phone calls” would be slander/libel. That means there’s no way a future employer (or school, if he goes to college) could be warned of his behavior without opening both parties to a nasty lawsuit. It is only slander if it is demonstrably false. A criminal acquittal only relieves him of his criminal punishment. There could still be civil liability, or employment ramification. The burden of proof to fire or fail to hire somebody is considerably less than needed for a criminal conviction. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 28, 2014, 10:02pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/18 "2014-04-28T22:02:22Z")
Wasn’t there a guy in Oklahoma who was charged with murder, sentenced to life in prison, appealed and WON, only to be retried, found guilty and sentenced to death? He was recently executed. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [April 28, 2014, 10:42pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/19 "2014-04-28T22:42:28Z")
If he’s found NOT guilty at his re-trial, then what happens? Can he sue the state for his nine months of false imprisonment? Can the state be subject to such a risk in considering its decision to re-try? _Should_ the state be subject to such a risk in considering its decision to re-try? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 28, 2014, 10:53pm UTC](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181/20 "2014-04-28T22:53:27Z")
You can’t sue the state for wrongfully imprisoning you under almost any circumstances (absent a waiver of sovereign immunity, which no state has made AFAIK.) [Next page](https://boards.straightdope.com/t/how-is-this-criminal-case-not-double-jeopardy/687181.md?page=2)