Let us consider a defendent, John Q. Doe, about to be released after serving four years in prison. John served his four years as the result of a trial finding him guilty of mopery in the first degree.
One year after John’s conviction, the state supreme court found the law against mopery in the first degree to be unconstitutional, and overturned the conviction of another man who had appealed his mopery conviction. John, however, took no such action. He served his time, and his on his way to the prison gates with suitcase in hand, a free man after serving his debt to society.
There he is greeted with an arrest warrant and indictment. The county prosecutor has asked a grand jury to indict John for aggravated mopery, on the same events that were the basis of his earlier conviction. Aggravated mopery is still a valid law, untouched by the supreme court’s action.
What about double jeopardy? The prosecution contends that since the supreme court found the law under which John was convicted to be unconstitutional, any convictions under it were void ab initio. Therefore, John has no previous convictions that would operate as a bar to the current charges.
Thoughts? And this is, as you might imagine, based on a real case; I’m not nearly smart enough to think these things up. Not only is it real, but the trial court in the real case thought enough of the prosecutor’s argument to allow the second trial to proceed; John’s counsel brought an interlocutory appeal and that lead to the decision I read.
Note that it doesn’t say anything about “except in sufficiently convoluted legal circumstances” nor anything about getting “takebacks”, voluntarily or not, on a previous conviction. I can’t see any grounds to allow a trial to proceed - more practically, I can’t see a trial granted in these circumstances surviving appeal.
If mopery and aggravated mopery were both on the books as valid laws when he did the dirty deed, he can be tried for both. That they didn’t try him for A.M. before the mopery crime was taken off the books doesn’t affect whether or not he can be tried for aggravated mopery.
Statute of limitations may come into play, however, if he served enough time for mopery.
Does the rule against double jeopardy apply to being charged twice with the same crime, or twice for the same act?
If it is for the act, I would imagine that at some point in the appeals process the second trial would be thrown out regardless of whether the original crime was wiped “off the books” or not. (At least I hope it would.)
Regardless of the terminology, John served his time and met the conditions of the spirit of the law. We’ll have none of this “change the semantics and charge 'em again”! Ruling = county prosecutor disbarred. Case thrown out.
like Ethilrist, I first thought about SoL arguments. But that doesn’t apply here, obviously, or this situation wouldn’t even be coming up. So either agravated mopery is an extremely serious crime that survives years in jail or plain ol’ mopery requires a very short sentence.
Also, I find it hard to believe that he could be charged with aggravated mopery in the first place for two reasons. 1) What crime is it where one thing is unconstitutional but an advanced form of it isn’t? I’m trying to think of an example. Aggravated abrigement of the press? I’m at a loss.
2) Ultimately, they’re both based off the same crime. You can’t sentence someone for manslaughter, later, while they’re in jail, find out they intended to kill the victim, and later charge them Murder 1, can you?
Caveat: Constitutional Criminal Procedure is not my field.
We may need some additional facts. Primarily, we need to know the elements of a charge for mopery in the first degree and aggravated mopery. I assume that aggravated mopery is not a lesser included offense of 1st degree mopery as it was described on the books. (What element makes it aggravated versus 1st degree?) Your question assumes that state law applies to both situations but is it the same state in both instances? (I assume it is since you did not indicate otherwise.)
The other problem I have is with the prosecutor’s characterization of the conviction as void ab initio. To apply what is primarily a contract doctrine to a criminal case seems to me to be pretty disingenuous. The prosecutor’s argument is essentially that the conviction was void as opposed to voidable. Since Mr. Doe was not automatically released from prison (and why he wasn’t I have no idea–remember it isn’t my area of expertise) I would say his conviction was voidable, rather than void, and thus the void ab initio argument is defeated by the facts.
Despite the mess that SCOTUS has made with analysis of double jeopardy cases, I would say this will probably fall in to the category of a multiple prosecution for the same basic conduct and is thereby prohibited by the 5th Amendment.
The prosecutor was obligated to seek convictions for all crimes arising from the same “transaction,” (or whatever y’all call it in your jurisdiction), so barring new evidence, the prosecutor shouldn’t be able to charge him with aggravated mopery without regard to whether the simple mopery charge was constitutional or not. The fact that the conviction was voidable or void ab initio doesn’t change the fact that Mr. Doe was tried. Heck, double jeopardy can attach if a mistrial is called (under certain circumstances) during the course of a trial, forget about conviction.
So, the prosecutor is overreaching and the trial judge is an idjit.
Some Guy - it’s already well-established that a person may be tried again following a appeals court overturning his conviction. The prosecution in this case argued that, in essence, that’s what happened here. The state supreme court ruled that there was no such crime as the one with which John was charged. By all rights, said the prosecutor, just as if John himself had asked for his conviction to be overturned, his conviction was overturned… meaning I’m free to charge him again.
Ethilrist - both crimes were on the books at the time of the offense. In general, you can’t be tried for two separate crimes arising out of the same set of events unless each requires proof of an element that the other does not. In this case, mopery in the first degree was a lesser-included offense of aggravated mopery… that is, to prove aggravated mopery, you must prove all the elements of mopery in the first degree, plus an additional element. For purposes of double jeopardy analysis, they are the same crime.
There is no statute of limitations issue here - four years after the fact, when John is getting out of prison, is still sufficient time to be charged with aggravated mopery in his state.
PeeQueue - the protection against double jeopardy requires that the crimes be the same in law and in fact. The “same elements” test I describe above is the accepted test (See Blockburger v. U.S.) to determine if two crimes are the same for the purposes of double jeopardy. In this case, the crimes were the same. The prosecution readily admits that they could not have charged John with the second crime after a conviction on the first… except, he says, that the state supreme court ruled that the first crime didn’t exist. At that point, according to the prosecution, John’s conviction simply vanished, opening the way to pursuing the second trial.
Sumac - appreciate your succinct analysis. But usually appeals courts like to be able to attach reasons to what they do, especially when overruling a trial court.
Enderw24 - I’m not sure what constitutional flaw caused mopery in the first degree to be ruled unconstitutional while aggravated mopery survived, but that’s what happened, so far as I can see.
That’s exactly right - you can’t. But if their conviction was overturned as a result of their appeal, and you could prove that the new, more serious charge was not prosecutorial vindictiveness, you might be able to charge them with murder in the new trial.
Thrasybulus - As I suggested above, I think we’re safe in assuming that aggravated mopery requires proof of all the elements of mopery-in-the-first, plus showing an intent to creep, at night. It’s the same state in both instances.
I’m going to hold off comment on your voidable vs. void theory for now. You are correct, though, that Mr. Doe was not released from prison after the unrelated case reached the state supreme court and was overturned, but rather served his full sentence and was then released, only to be instantly re-arrested.
As SuaSponte alluded, the Fifth Amendment does not say that people can’t be convicted of the same crime twice, it says that they can’t be tried. The fact that he was not convicted is irrelevant; he was obviously tried.
DPWhite, my criminal law prof always used “mopery” as his generic crime when discussing hypotheticals - “mopery with intent to creep” was my favorite.
Let me ask SuaSponte, or those adopting his position, to explain why it is that jeopardy prevents this.
We all agree, I assume, that jeopardy, which attaches the moment the jury is sworn, or the judge begins to hear evidence in a bench trial, does not necessarily prevent a retrial if the defendant’s conviction is overturned on appeal. For example, if John’s mopery conviction came about in part because his neighbor testified that he had been told by John’s brother about John’s mopery, then clearly the conviction rests on inadmissible evidence, and must be overturned. But John can’t stop a new trial by claiming double jeopardy, even though jeopardy attached in the first trial.
On the other hand, if the conviction is overturned because, as a matter of law, there was insufficient evidence for a reasonable fact-finder to find guilt (such as John’s conviction coming about solely because of the hearsay testimony), then John may claim that jeopardy bars his retrial.
In this case, the prosecutor is saying that there was no valid charge in the first place - that John was charged under a law that, since being declared unconstitutional, is treated as though it never existed. He analogizes this to the conviction being overturned on appeal, saying that, once overturned, former jeopardy does not prevent a retrial.
Why is this not so?
And - would it matter if John’s conviction came as the result of a guilty plea, rather than a trial?
Again, I must preface my remarks with the fact that this isn’t my area but I wanted to point out a few minor nits:
[QUOTE]
*Originally posted by The Ryan *
It doesn’t and there are a number of cases in which a person may be retried after declaration of a mistrial for prosecutorial misconduct (See Lee v. United States) and even after conviction and subsequent reversal on appeal (See Lockhart v. Nelson). In fact the Amendment states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” which to my recollection is generally believed to mean that a person cannot be punished for the same crime twice. See Ex Parte Lang (“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence”) The idea that a trial took place is helpful in the analysis but is by no means dispositive of the issue.
I will not change my opinion that double jeopardy attached but I don’t think this is nearly as obvious a case as has been suggested.
IANAL. but I would say that if John was convicted of mopery,sentenced to 4 years,appeals and wins a new trial, at the point of his asking for a new trial he’s no longer in jeopardy.He’s already been convicted and sentenced. If he gets the new trial and is again convicted,he’ll most likely receive the same sentence.If he’s acquitted, he’s set free. His situation either stays the same or gets better.There’s no danger.
On the other hand, if John is retried for aggravated mopery after serving 4 years for mopery in the first degree (now non-existent),presumably he'll be doing more time if convicted.Otherwise, it makes no sense to bother. Either the sentence is higher or the four years wouldn't be credited to the new sentence.(probably both)His situation either stays the same or gets worse.That is danger.
doreen, the analysis for double jeopardy is not whether ot not the accused faces increased “danger.” The Fifth Amendment protects against three things: multiple punishments for the same offense, additional prosecutions for the same offense after conviction, and additional prosecutions for the same offense after aquittal.
The Due Process clause has been held to protect a person from facing more serious charges after a successful appeal, if those charges stem from prosecutorial vindictiveness – that is, the prosecution cannot “punish” a defendant for exercising his right to appeal by upping the ante in a new trial.
My understanding is that that John can’t just ask for the conviction to be thrown out; he has to ask for a new trial. The conviction is then put aside pending the outcome of the new trial. The fifth amendment allows for the defendent to ask for a new trial; it does not allow a prosecutor to do so.
Thrasybulus
It doesn’t what? Doesn’t say that people can not be tried twice for the same offense. Yes it does.
(my emphasis)
Jeopardy mean “possibility”. There need not be any punishment, only possibility of punishment.
From a judicial point of view, perhaps it is not. But from a “look at what the ammendment actually says”, it is dispositive. John was put in jeopardy of being imprisoned. Now the prosecutor is trying to put him in jeopardy again. That is unconstitutional.
Bricker,
Perhaps I didn’t express myself clearly, but I was trying not to use the word “jeopardy” too often. The Fifth Amendment says “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” and as I understand it,has come to include liberty.Since the definition of “jeopardy” is “danger”, that works out to “nor shall any person be subject for the same offense to be twice put in danger of life or limb” (or liberty). I’m not saying there is more jeopardy in one scenario than the other.I’m saying there isn’t any jeopardy at all in one. When someone appeals after a conviction,his liberty is not in jeopardy. He’s already lost it (or some of it) for the duration of the sentence.He’s essentially asking for a chance to get it back.
To use an example of something similar (but not exactly the same) Suppose John got sentenced to four years,but got paroled after two.He then gets convicted of a new minor crime and gets a short sentence (say 30 days). A parole violation proceeding then starts, his parole is revoked and he is returned to prison for two years. Double jeopardy doesn’t prevent this, because he lost those two years of liberty when he was originally sentenced.
I gotta agree with Bricker on this one, but to be true to being a lawyer, I will only say that for $400 an hour and with many conditions. So in fact, I agree with Sua Sponte too. Maybe I’ll charge both of you.
As a starting place:
Mr. Y steals a car from Townville, Ohio. He is arrested with the car in Cityfield, Ohio. In Cityfield, he is convicted of joyriding and sentenced to jail and a fine. After serving his time, he goes to Townville, where he is charged with auto theft. He pleads guilty to that, but eveyone agrees he can argue double jeopardy in subsequent motions. Well, he does, all the way to the USSC, where the Supreme’s say: yep, violated the DJ clause. They said:
They then went about to determine whether joyriding and auto theft were the same offenses for the purposes of the Double Jeopardy clause, and stated:
All in Brown v. Ohio, 432 U.S. 161.
However, take a look at this:
Take for example Mr. X, who decides to sexually assault his step-daughter. He is charged with sexual assault and incest. The Court holds that (for unrelated law reasons dealing with the legislative intent in making incest illegal) that the State can’t charge Mr. X with Sexual Assault, only with incest. Mr. X is tried, convicted, and sentenced to prison for incest. It just so happens that AT THE TIME Mr. X was raping his stepdaughter, that the legal definition of incest did not cover step children, so the appelate court voids the conviction of Mr. X for incest. That court says, if the offense charged in the second trial is the same in law and fact as the offense charged in the first trial, the double jeopardy clause prohibits successive trials. The court then found sexual assault and incest involved the same law and facts.
Not wanting a creep like Mr. X to walk away from this, the State appeals and goes to the USSC. The Supremes decide that the State CAN try and convict Mr. X for sexual assault without violating the Double Jeopardy Clause, because, in brief, the double jeopardy clause doesn’t cover convictions that are reversed on appeal for any reason other than insufficiency of the evidence. (this is all laid out in Montana v. Hall, 481 U.S. 400.
Whew, still with me?
The difference between these cases is determined, in part, by what happened in the original case. If John Doe’s original conviction was overturned (which it wasn’t yet) then Montana would apply and the State could charge him again. This puts the State in the odd position of asking a Court to strike a conviction it had already obtained so it can re-charge a guy. If his conviction hasn’t been dealt with, I think Brown applies and you have a double jeopardy issue.
Now, this is just a start, cause you also have to deal with the issue of whether Mopery and Aggravated Mopery are in fact the same charges for the purposes of the Double Jeopardy Clause (which it appears they are under Brown’s analysis). You could also attack it as Sua Sponte did and say it violated the DJ clause because they did not try him in the same proceeding. This is the tack a concurring opinion took in Brown. You would also have to be concerned that, if convicted, John Doe may not be able to be resentenced to more than the 4 years he originally got, without violating Due Process and local statutes. But that’s for another GD.
Personally, I can see why, since John never appealled and asked for the overturning of his original case, the State should not be allowed to try him again, however, since the Statute was found unconstitutional, his conviction is, by operation of law, void, and he could be recharged. Otherwise, John won’t have ever been “convicted” of a crime.
As an aside, I really hope I didn’t do your research project for you Bricker.
