Suppose I am accused of capital murder and in the face of overwhelming evidence, the jury votes to acquit, possibly on the basis of the large amount of cash I paid them and I am subsequently convicted of jury tampering. Am I protected from the death penalty (I live in Texas) due to the double jeopardy clause (assuming only one victim)?
Thanks,
Rob
The supreme court of the us had a similar case, and ruled that the accused could be retried.
The concept was that the defendant wasn’t ever in jeopardy, ergo, no double jeopardy.
It was the judge that was paid off, in the case.
Best wishes,
hh
I remember reading a book about a case in Chicago somewhat similar to the hypothetical you describe–sorry, cannot remember the title.
Here’s what I remember of the facts: a mob hitman murdered someone, and then the mob bribed the judge. I don’t recall whether the judge through the case out, or whether it was a bench trial, or what, but in any case the guy was acquitted.
Years later, the authorities were able to prove that the judge was corrupt and they successfully prosecuted the judge for taking bribes. Then they retried the hit man and this time he was found guilty. He asserted double jeopardy, but his argument was rejected. I’m not sure how far up the appeal went, but in any case the appeals court held that there was no double jeopardy because the original case had been a sham.
I believe that, for similar reasons, double jeopardy would not be an obstacle to retrying the accused under your hypothetical.
ETA: I believe that the case that HH refers to is the same one I am thinking of.
If it was good enough for a 1995 Law & Order episode, it must be true!
That would be Harry “The Hook” Aleman. He was tried by a judge (a bench trial) rather than by a jury, making the bribery that much more straightforward. I would assume that the same principles would apply to a bribed jury, though.
Previous thread that discusses this, in the context of a Staff Report I did. I’d link to the Staff Report, but it has vanished. 
Hey Bricker,
I note at the end of your report, you state that if the facts change, you are talking about a new crime. Would double jeopardy play a factor if after being acquitted for the murder of Foo Bar on April 15th because several witnesses saw you dropping off your tax return when you were supposed to have been committing the murder and it subsequently comes to light that the murder actually took place on the 14th and you were reprosecuted? I would think it would, but I can’t say for sure.
Thanks,
Rob
The short answer is “it depends.”
That’s not a very satisfying answer, though, so here’s a bit more detail.
One aspect of the double jeopardy rule is known as collateral estoppel. This rule, now often called “issue preclusion,” means that when an issue of fact is fully and finally litigated between parties in one proceeding, it may not be subsequently be re-litigated between those same parties in a different proceeding.
So when the jury acquits you for the first time, the prosecution would have to show that their second trial would be based on a different set of alleged facts and evidence. Strictly speaking, the rule is the the court should “…examine that record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”
So the judge has to look at the record of the previous trial and decide which grounds, which elements of the crime the proof for which a rational jury could have disbelieved, leading to the acquittal. Each of those grounds is off limits for the prosecution to try to prove again at a subsequent trial.
So under ordinary circumstances, a minor variance in the time of the death isn’t going to be enough to save a second trial; the first acquittal would most likely bar reprosecution.
Here is a thread about this case, in which the confession changed the charges with which the defendant could be charged, allowing him to be tried again.
Also discussed in this post, which is part of the thread I linked to above.
In my last example, I was thinking of a case where, say, the police found some physical evidence such as the victim’s blood on some of the defendant’s clothing. Due to some slip-up, the time of death was established as happening during a period where the defendant could provide a solid alibi. The prosecution tries the case and the jury acquits based upon the alibi. The slip-up is discovered (I realize this is pretty contrived, but bear with me) and now the prosecution decides to retry the case. Do a new set of facts exist?
Also, does the concept of double jeopardy exist in grand jury hearings?
Thanks,
Rob
All apologies for the hijack, but how exactly should we phrase that to fit the conclusion in the link posted hereabouts?
If his murder was a fully and finally litigated issue of fact, then wouldn’t it be off-limits for the prosecution to try and prove he wasn’t actually murdered on that date? If they established that he was knifed to death somewhere else a good six years ago, then why wouldn’t collateral estoppel preclude 'em from claiming the guy didn’t in fact get killed then and there?
Probably not. An indictment will usually allege that “On or about” such-and-so date and time, the accused did unlawfully kill Joe Blow, contrary to the laws of the Commonwealth of Virginia. A slight variance in time is not fatal to the indictment, and if acquitted, the discovery that the death happen at 1:00 PM instead of 3:00 PM does not give the Commonwealth enough distance to recharge the crime.
But let’s say that what’s discovered is entirely new theory of the crime: maybe it’s learned that the accused stuck the body in a freezer for a month, and did some other things to make it appear he was shot when he was really stabbed with a bullet-shaped knife, or something.
The greater the set of different facts that are now being alleged, the greater the chance the accused can be retried.
The court basically has to answer the question: what could a rational jury have possibly used as the bassi for the acquittal? This will be highly dependent on the evidence adduced at the first trial. If the defendant testified and swore on his dear sainted mother’s life that he never so much as laid eyes on the victim, and certainly not killed him, then a rational jury might well have chosen that evidence to believe, not just the alibi evidence. But if the defense was merely the presentation of one alibi witness to authenticate a bank videotape that showed the accused was two hundred miles away during the time of death, then the new facts might survive the inevitable motion to dismiss for DJ.
No. It’s worth pointing out, though, that there may be statutory constraints in a particular state that limit the attempts the prosecution has to indict. Speedy trial concerns may be implicated. But there is no constitutional prohibition against asking one grand jury to indict, failing to get a true bill, and trying again with another grand jury.
Because “his murder” was probably not the issue of fact. “His murder on or about February 25th, in the County of Fairfax, Virginia,” was. Given the evidence they saw, the jury was probably not asked simply to determine if the guy was dead, but rather if he was feloniously killed at a specific time and place. Their failure to agree to that proposition doesn’t mean they rejected the idea he was dead at all.
Again, though, it depends on the specifics of what evidence was offfered at trial, and from that evidence what a rational jury could have chosen to believe.
It might also implicate issues of equitable estoppel, a principle that precludes a party from arguing contradictory factual positions in different proceedings when the other party relied on the first position to his detriment now. Not a position I’d be prepared to defend tooth and nail, mind you, but something to consider.
No, see, I’m asking about the opposite of that.
In the much-maligned Ashley Judd film, the whole point is that a jury did agree to the proposition when determining that he was feloniously killed at a certain place and time. She wound up in prison because they rejected the idea that he was alive; that issue of fact got litigated, and the jury found that he’d been killed by her on the date in question.
And six years later, she (a) is out of prison and (b) runs into her husband; she contemplates killing him, reasoning that collateral estoppel would preclude the prosecution from subsequently re-litigating that issue of fact in a different proceeding; to quote the movie, “the state says you already killed your husband, right? So when you get out of here, you track him down and you can kill him. You can walk up to him in Times Square, put a gun to his head, and pull the fucking trigger – and there’s nothing they can do about it. Kinda makes you feel all warm and tingly inside don’t it?”