I’m really despondent about the fact that one day I might get busted for mopery.
Heh - not to worry. Not only have I passed the bar years ago, I no longer even practice law. This was merely an interesting exercise in analysis, brought on by a real-life case I was reading.
Borwn merely applied the Blockburger test – usually that’s the seminal case for DH analysis. We’re all agreed that mopery 1st and aggravated mopery are the same offense for purposes of double jeopardy.
Good call. As it happens, Doe’s conviction hasn’t been dealt with. Certainly Doe was in a position to move to have his verdict overturned after the state supreme ruled the offense unconstitutional, but he never did.
You call it an “odd position” for the state to be in – and it most certainly is. But that doesn’t answer the question of whether the state can do it. And if they cannot - why not?
For what it’s worth, by the way, you’ve answered the original problem nicely. No court has set aside the conviction. As the real-life opinion that sparked this line of thought says:
(Robbie Moore and Gomecindo Tellez-Valencia were the two whose verdicts were overturned - neither, obviously, is John Doe).
- Rick
In Canada, our Criminal Code at section 12 prohibits multiple convictions for the same delicit, even if it is possible to charge under more than one act, so it would be almost impossible to make the aggravated charge stick after a simple charge of the same nature. A lot would depend on the difference between act and delict, thus although with regard to the Criminal Code this sort of thing simply does not happen, it is still imaginable in a twisted sort of way if the court were to rule that there were no nexus between a simple count and an aggravated count of the same offence. Personally, I think that would not be logical, for if there were no nexus in the delict, then there would be two offences, mopery and glummery, rather than two degrees of the same offence of mopery. But for the sake of a lively argument, let’s assume that against all reason, two degrees of the same offence count as two delicts rather than one.
We would then turn to the Charter of Rights and Freedoms, which is part of our Constitution. Section 11(h) protects against double jeopardy, which the courts have interpreted to mean a nexus of the delict, rather than a nexus of the act itself, so the OP’s fact scenario might not be protected by 11(h), again in a twisted sort of way in which we throw all reason to the wind and consider two degrees of the same offence to be two different offences.
However, section 7 of the Charter protects fundamental justice, and therefore includes the doctrine of abuse of process. Thus the fellow would walk simply because on its face the late and mostly redundant prosecution would violate the fundamental principles of justice that underlie the community’s sense of fair play and decency. In other words, a twisted sort of interpretation of the C.C.C. s. 12 and the Charter s. 11(h) would not hold up.
But to keep this thing alive, let’s say that something got in the water and the Crown actually succeeded on the C.C.C. 12 and Charter 11(h) and 7 arguments.
Ultimately, our Supremes have ruled (in Kienapple, which has been followed extensively) that the comon law doctrine of res judicata prevents multiple convictions for the same wrongful act even if the subject matter of that act can be the basis for two or more separate offences. In other words, damn the delict. What counts is the factual nexus of the dastardly deed, and if were only done once, then there can be only one conviction, regardless of there being more than one possible charge. Yay, common law!
So if you are ever picked up moping about in Canada and charged with both simple and aggravated counts, don’t worry about the holes in the Criminal Code and don’t worry about the holes in the Charter (though s. 7 would ultimately save you). Just tap your heels three times, recite “Nemo debet bis vexari pro una et eadem causa,” and put your faith in the good old common law.
Normally, res judicata is not applied to American criminal law; it’s used here as the civil equivalent of double jeopardy.
Interestingly, a related doctrine, collateral estoppel, is applied to criminal cases. There’s a move afoot to replace these common law terms with “claim preclusion” and “issue preclusion” respectively.
The key element in this situation, though, may not be answered simply by applying res judicata. As I said, the prosecution’s claim was that the original conviction was void ab initio. So the prosecution, Muffin. would argue that they only seek one conviction - the first didn’t exist, because the law under which it was obtained was ruled invalid, thus making the conviction invalid. I don’t see how res judicata saves you from that argument.
- Rick
Up here there is a slight difference. Double jeopardy deals with a delict nexus, whereas res judicata deals with a act nexus.
Being invalid from the git go does not mean that the conviction did not happen. The Moper was convicted, albiet wrongfully. The conviction is nugatory (don’t you love that word?), but it still happened. Having happened, despite being invalid, res judicata then applies. The issue is not when the law was taken off the books, or why the law was taken off the books, but rather that the moper was convicted while the law was on the books, and is therefore protected by res judicata.
Another way of looking at this is to consider the reasoning behind trying to wipe away all traces of a wrongful conviction. It is to provide a shield for innocent but wrongfully prosecuted people. In the OP’s scenario, the cleansing is not being used as a shield, but rather as a sword. That would place the moper four square within the Charter s. 7 protection.
But getting back to the res judicata, the subtle difference between double jeopardy and res judicata comes into play here. With res judicata, the nexus is the act, not the offence. Therefore it does not matter whether the offence was valid in law or not, for the prosecution for the act took place in advance of the conviction, and the prosecution for the act triggers the res judicata, not the conviction for the offence.
Does this extend to any conviction that is overturned for any reason. I’d hate to see someone convicted of murder, whose jury instructions were improper and his conviction was overturned on appeal, all of sudden walks free for life. Under your reasoning, since the conviction occurred, res judicata applies and the State can’t try him again. I can’t believe that, if you win on appeal in Canada, the State can’t try you again for any reason. I think that’s scary, for Canada, Bryan Adams and Celine Dion-scary.
Scary? Naw. That’s the beauty of an appeal system. It permits mistakes to be corrected, and once the mistakes are corrected, if a person is acquitted, then they are free to get on with their lives.
We have an appeal process (and a judicial review process) which permits a lower court’s decision to be reviewed by a higher court to see if the lower court made an error. There are several levels of appeal courts, so even appeal courts’ decisions are reviewed for error by even higher courts. Within that self-contained system there can be re-trials, convictions and acquittals. If, after the multi-level appeal process is exhausted, a person is utlimately acquitted, even if it is for only procedural reasons, then that person can not be prosecuted again for the same matter unless that person’s acquittal was due to that person behaving fraudulently toward the court.
In your example you have an appellate court which has decided to acquit, which means that it chose not to convict, and it chose not to re-try, despite having the power to do either, and despite being very aware of the consequences of letting a possible killer loose. Unless there is a higher level of appeal, then yes, in Canada, the Crown would have to respect the court’s decision and not continue to go after the person for the same thing again.
Think of what it would be like if after being acquitted at a final appeal, a truly innocent person could be re-charged and put through the wringer again and again and again at the whim of the prosecutor. If this were the case, you might as well not bother having a court system at all – just police and jails. Yikes!
There’s a very important document which helped shape our law over the centuries. It was executed in 1215 A.D., and is called the Magna Carta. Here are a couple of paragraphs worth thinking about in the context of the importance of being able to get fair judicial treatment, and to also eventually come to a final decision without unreasonable delay (for justice delayed is often justice denied):
*“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
“To no one will we sell, to no one deny or delay right or justice.”*
If you were to have a system which does not permit the decision of the final court of appeal to be respected, and which permits a person to be hauled through it again and again for the same thing without ever being able to obtain finality, then I think that you would be running against the grain of a very lenghty legal tradition, and in turn also offend the societies which have developed and rely upon that legal tradition.
Two things – mopery was defined in the fine movie Johnny Dangerously as the act of exposing oneself to a blind person.
Second, IANAL but how about collateral estoppel? Could it come into play here somewhere, somehow? I just love the idea of a prosecutor being collaterally estopped. It sounds beautifully harsh.
The answer is no. An overturned conviction in that instance would leave the DA with the option of a retrial.
Collateral estoppel, or issue preclusion, simply means that once a particular issue has been litigated to a final decision, the losing party may not re-litigate that issue in a different proceeding.
It’s different from res judicata, which precludes the same claim being relitigated.
Collateral estoppel rarely comes up in criminal law.
- Rick
Not sure how much my legal knowledge will apply as it is the England And Wales legal system, but I only have this to add.
If I remember rightly, if there are several levels to a crime, the prosecution must charge the accussed with the highest level they think they can prove. For example, if someone is killed, but they don’t think they can prove intent then they must charge the accused with manslaughter.
In other words, the prosecution, the Crown in the UK, has to make a final decision at indictment stage what crimes they will charge the accused with. Under certain circumstances, during the trial, the prosecution can add charges to the indictment, but once it has gone to the jury, thats it, no changes allowed. So if the guy has been convicted of a crime at a certain level, he can never (never ever, period!) be recharged at the higher level because the Crown made thweir choice at trial time.
Don’t know if this has added anything to the debate. If it hasn’t jusr ignore me, I’ll be the one in corner, hiding my face! Is what I just said what you refer to as prosecution vindictiveness and the rule against it?
No. Prosecutorial vindictiveness refers to the practice of “punishing” a defendant for exercising their right to appeal, or, indeed, any constitutional or statutory right.
The classic case is increasing the charges after a sucessful appeal, but that’s not always prohibited. The presumption is that it’s a result of vindictiveness, but it’s rebuttable.
It could also apply to a prosecutor who charged simple possession, but had a policy of withdrawing that charge and indicting on possession with intent, any time an accused challenged a search. A prosecutor who routinely did that would, in effect, be telling defendants that there was a price to pay for seeking to suppress evidence. Since suppression motions are something every defendant is permitted to make, prosecutors are not permitted to exact such a price.
- Rick
Perhaps there is a misunderstanding, because the United States, in the double jeopardy clause, has the same concerns that you, and the Magna Carta, have. However, the D.J. clause does not allow a person who wins on appeal to automatically walk away from the case forever. It sounds like, with Canada’s appeallate courts having the ability to retry and rehear the cases, they too make sure this doesn’t happen.
Take a hypothetical of Mr. Jones who kills his family, leaves his DNA, confesses, and the key witness is the pope. He’s charged, and goes to trial, and is convicted. During trial, there is some abnormality, like the prosecution asks a question that shouldn’t have been allowed, or the jury is improperly instructed. The appeallate court in the U.S. would hold that the abnormality led to the Defendant not getting a fair trial, and overturn his conviction. Unless the appeallate court makes a specific finding that the Defendant shouldn’t face a second trial (i/e the evidence was patently insufficient to prove a conviction), the State is allowed to retry the Defendant.
This makes perfect sense to me. The Appeallate Court’s opinion is respected and followed (the State has to give the Defendant a fair trial), but the killer doesn’t automatically go free.
So Muffin, what would happen to Mr. Jones in Canada? He walks for a crime he clearly committed, because of one abnormality in the original trial? That, I think, is a travesty. Granted in a rare case, the State may try a person for a crime ad infinitum (there was a Southern Yokel who was tried, I believe, 4 times for a church burning done in the 60’s), but those are indeed few and far between.
Ditto for Canada.
The real life case? People v. Turner, a Fifth Appellate District case from Illinois, released this month. The charges against Turner were two counts of predatory criminal sexual assault of a child. The Illinois Supreme Court, in a pair of unrelated cases, had previously declared the law forbidding “predatory criminal sexual assault of a child” unconstitutional. Upon Turner’s release, the Massac County prosecutor’s office sought an indictment for aggravated criminal sexual assault, which everyone agrees is, for double jeopardy purposes, the same crime as predatory criminal sexual assault of a child.
The apellate opinion reversed the trial court and dismissed the new charge against Turner.
- Rick
If the police or the prosecutor made a couple of small to moderate whoops during the trial of Mr. Jones, who on overwhelming evidence had killed his family, then the odds are that the appeal court would uphold the conviction. The court would recognize the breaches of fundamental rights, but would then put them in perspective by looking at whether or not they really made a difference in the jury’s decision, and the appeal court would also weigh the seriousnes of the breaches against the overwhelming clean evidence. Procedural errors are not automatic outs up here (e.g. hard evidence is usually admisible despite a bad search).
If the errors were seriously prejudicial to Mr. Jones, then the appeal court would order a re-trial. The Crown would have to re-try, and if it hesitated (e.g. tried to delay or tried to withdrawal with hopes or re-laying later), the defendant would insist on a dismissal. Note that a re-trial would not trigger res judicata because the re-trial would simply be an extension of the original prosecution as part of the overall appeal system, making it possible to have the fair trial despite the initial attempt having been botched. This would be very different from having been acquitted at a fair trial or fair appeal, but still having to face another fresh prosecution for the same matter. Note that if there were to be a re-trial, it would be ordered by the appeal court so as to make it possible to have a previously denied fair hearing, not by a prosecutor unsatisified with a final appeal court’s decision following a fair hearing.
It is extremely doubtful that Mr. Jones would be acquitted on appeal given the seriousness of the crime as compared to the seriousness of the procedural errors. If, however, he was acquitted, and there were no higher courts to which the Crown could appeal, then he would walk, and could not be prosecuted again for the same matter. Never.
(BTW, IRL I was on an appeal case like that last year – several significant procedural problems, including a bad search and police intimidation, but what it ultimaely came down to was that despite the tromping of rights, the fellow was a psychopathic triple murderer, so he did not pass go. Despite all the technical stuff, the appeal court judges are pretty firmly grounded in common sense.)
I am argentinian, so we have a different legal system but I think the solution is the same. It really is difficult for me to tranlate my ideas (sorry for that) it’s a matter of scale for example, in our penal code Hurto is stealing without using force on things or violence over people, the agravated figure is robbery (when you use force or violence) therefore if you are convicted of hurto (1 month to one year of prision) when a sentence is definitive (that is when you can’t try any other defense) it is definitive not only of all the things discussed in the trial but also of the others that could have been discussed (the use of violence or force) but in fact weren’t. Therefore if someone then tries to go to trial using robery you have the exeptio res idicuta (thing alredy tried). And as a future lawyer I will employ now a latin phrase wich is not necessary to end (every lawyer who has respect for himself would do te same). Quod delictae tod poennae non bis in idem (every felony has its penalty but no one can be tried more than once)
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Hamlet,
There are two points to consider in answering your concern: whether the appeal period has lapsed, and exactly what order the appellate court gave.
On the first issue, there is an important distinction between a case where an appeal is still possible, and a case where the Crown has allowed the appeal period to expire without lodging an appeal. The double jeopardy provision in our Charter only kicks in once the appeal periods have expired and the decision of the Court then becomes final:
So, when an appellate court sets aside a conviction, the accused has not been “finally acquitted” unless the Crown allows the appeal period to lapse without lodging an appeal to the next court.
The other point is the powers of the appeallate court. Under our Criminal Code, on an accused’s appeal from conviction, the appellate court has three options:
[ul]
- it can dismiss the appeal;
- it can allow the appeal, set aside the conviction, and enter an aquittal;
- it can allow the appeal, set aside the conviction, and order a new trial by the original trial court.[/ul]
If the appellate court allows an appeal, the normal result is a re-trial. It’s rare for an appellate court to issue an outright acquittal, because it has not had the benefit of hearing the witnesses, and so on - it’s not a trial court. So it normally will prefer to have a trial court take a look at it again.
However, the appellate Court might use its power to enter an acuittal. For example, it might conclude that, based on the successful ground of appeal, no conviction is possible even if the matter went to a re-trial.
So, in the example you gave, if the appellate court entered an acquittal, the Crown would have to seek to appeal to the next level of court. If the Crown did not do so within the time allowed, then the individual would have been “finally acquitted” and could not be tried again.
If instead the appellate court simply set aside the conviction and ordered a re-trial, the Crown would have two options: it could set the matter down for trial, or it could try to appeal that decision to the next appellate level.
In my experience the more customary order is that the appellate court directs a new trial, but even if the appellate court enters an aquittal, the Crown still has the option of trying to appeal. A court decision setting aside the conviction means that the accused is still “in the system” and has not yet had a final decision, either way, so double jeopardy doesn’t kick in.
[aside]
When I saw this thread title I thought: “Oh no, it’s that stupid Tommy Lee Jones movie again.” Then I saw that Bricker was the OP, and thought, “Oh, it’s okay - Bricker wouldn’t do that.”
That Double Jeopardy movie should be on the “-gry and spilled coffee” list.
[/aside]