The Trouble With Double Jeopardy

“I could shoot you in the middle of Mardi Gras,” Libby Parsons (played by Ashley Judd) tells her husband Nick in the 1999 thriller Double Jeopardy, “and they can't touch me.” Nick had faked his own death and framed Libby for the non-existent murder. Now, holding a pistol to his head, she invokes one of Americans’ most beloved rights—the Fifth Amendment guarantee that no one shall be “subject for the same offence to be twice put in jeopardy of life or limb.”

Luckily, Judd’s character finds another way to gain vindication, because the second shooting wouldn’t be the “same offence.” She can hardly be blamed for being confused, though. Double jeopardy—and when it “attaches” to a criminal charge––confuses even experienced lawyers and judges.

Double jeopardy cases try to make sense out of the jury system—which often makes no sense.  Criminal cases are to be decided on the basis of whether the prosecution has proved, beyond a reasonable doubt, the elements of the crime—the “ultimate facts” that demonstrate a defendant’s guilt. But criminal juries usually don’t have to explain their verdicts—they just say “guilty” or “not guilty” and then go home. So not every acquittal turns on one or two “ultimate facts”—or any facts at all. Juries sometimes let defendants go because they like them, or because they are confused, or simply because they don’t much care for the prosecutor. (Remember Hugo Black’s anecdote of the Alabama jury that heard charges against a man accused of stealing a mule. They found him “not guilty” as long as he agreed to “return the mule.”)  

Consider the first case of the Supreme Court’s new term, which begins next month. Bravo-Fernandez v. United States asks this question: when a defendant is validly acquitted for a crime that involves another crime, under what circumstances can the government retry for the underlying crime? To put it more precisely, if a jury decides that two men didn’t conspire to exchange a bribe, and didn’t travel to exchange a bribe, when can the government later try them for actually exchanging the bribe? In double jeopardy law, the issue is whether the bribe itself is an “ultimate fact” that was clearly decided by the jury; if it is, then there can’t be a second trial.  

Imagine, for example, that a masked robber invades a friendly poker game and steals all the players’ money. Police charge you with robbing Player A. At trial, you admit that the game took place, that the robbery took place, and that somebody took the money. But, you say, it wasn’t you; you weren’t there; you didn’t rob anybody.

The jury finds you “not guilty.”

But as you leave the courtroom, police cuff you again. Now you are charged with robbing Player B. Same time, same place, same poker game.  Different “offence”?

In 1970, the Supreme Court decided that double jeopardy barred the second prosecution. In Ashe v. Swenson, the court held that the evidence “that an armed robbery had occurred and that personal property had been taken  . . . from each of the [victims] was unassailable.” Thus, it said, “The single rationally conceivable issue in dispute . . . was whether the petitioner had been one of the robbers.” By acquitting the first time, the jury had decided that one “ultimate fact.” The state didn’t get another chance prove it.

Thus, in resolving a double jeopardy claim, a court must decide whether a “rational jury” has clearly based its verdict on one fact, or whether it could have reached its verdict on different grounds.

This process can produce bizarre results. Fourteen years after deciding Ashe, the poker-game case, the Court heard United States v. Powell, the case of a woman charged with possessing cocaine, conspiring to do so, and using a telephone to conspire to do so. A federal jury found her “not guilty” of actually possessing the cocaine; “not guilty” of conspiring to possess the cocaine; but “guilty” of using the telephone to engage in the (non-existent) conspiracy to possess the (non-existent) cocaine. The Court, in an opinion by then-Justice William Rehnquist, said that the dueling verdicts didn’t resolve any “ultimate fact”—they decided the case both ways. The acquittal could have been reached through “mistake, compromise, or lenity,” Rehnquist wrote—and thus didn’t and thus didn't require reversal of the conviction.*

That’s when verdicts directly conflict. What if, however, there’s only one verdict? The 2009 case of Yeager v. United States was an appeal by a former Enron executive charged with securities fraud, conspiracy, insider trading, and money laundering. The jury acquitted him of fraud; but on the other counts, jurors could not agree on a verdict—in lawyerspeak, they were “hung.” The acquittal was final, but the government moved to retry on the “hung” counts; the Supreme Court held that a valid acquittal on the fraud count barred retrial on the others. A hung jury is “a nonevent that should be given no weight,” the majority said, meaning that the score was Defendant 1 acquittal, Government 0 convictions, and double jeopardy applied.

This brings us back to this year’s case. In 2005, Puerto Rico Sen. Hector Martínez–Maldonado supported legislation that benefited Ranger American, a security company owned by Juan Bravo-Fernandez. As the bill progressed through the commonwealth’s Legislative Assembly, Bravo-Fernandez treated the senator to a lavish Las Vegas weekend, including hotel, meals, and a $1,000 ticket to a WBC Middleweight title bout. (For those scoring at home, Winky Wright edged out Puerto Rican hero Tito Trinidad.) Shortly after the trip, the bill passed. Federal authorities indicted the pair for allegedly conspiring to give and accept a bribe in connection with a federal program, traveling across state lines to do so, and exchanging the bribe itself.

In 2011, a jury acquitted them of conspiring and of traveling, but convicted on the bribe. The government, of course, could not appeal the two acquittals, which are final—but the defendants could and did appeal their one conviction. The court had misread the statute, they argued, and told the jury it could convict the two merely for exchanging an after-the-fact “gratuity” (“Hey, thanks for helping out, here’s a totally unexpected trip to Vegas”) rather than, as the statute requires, a before-the-fact “bribe” (“Please accept this trip to Vegas as a down payment for future corrupt acts.”)

The First Circuit agreed on the reading of the statute. It reversed the single conviction.

At this point, the score is apparently Defendants 2 acquittals, Government 0 convictions—as in Yeager, the case involving one acquittal and two hung juries. The two men now moved to bar retrial on the bribery count.  “There was no dispute that [the defendants] agreed to go, and in fact traveled, to Las Vegas,” they argued in a recent filing.  “The acquittals thus necessarily rested upon the jury’s determination that [they] did not violate [the bribery statute].”

The guilty verdict might seem to contradict that, they argue—but that verdict was invalid, because the Court of Appeals found that the lower court had used the wrong standard. Like the hung juries in Yeager, the two men argue, it is a “nonevent” and can’t be for double jeopardy purposes. We win, 1-0.

On a second appeal, the First Circuit rejected that argument. Unlike a hung jury, the vacated conviction remains in the record, it held. Thus the verdicts might be simply inconsistent—like the verdicts in the cocaine-possession case decided in 1984. And inconsistent verdicts don’t decide the “ultimate fact.”

So the second trial could go forward. In 2014, in a similar case, the Michigan Supreme Court had reached the opposite conclusion; the Supreme Court will now settle the issue.

In the past three decades, the number of federal crimes has exploded; many of these crimes nest inside each other like Russian dolls—a charge of committing a crime can be bolstered with charges of conspiring to do so, using the phone to do so, traveling to do so, lying about it beforehand in order to do so (fraud), and lying about having done so after the fact (false statement).  And that doesn’t even cover the closely related crimes that can also be tacked on to the indictment.

“In almost every criminal case, the prosecutor can pick and choose among a wide array of statutes potentially applicable to the conduct alleged,” the National Association for Public Defense noted in a brief filed with the high court in June. “And the problem is not merely that prosecutors have a ‘smorgasbord’ of offenses from which to choose . . . but that they are largely free to opt for ‘all of the above’ from the buffet.” As a result, the argument runs, federal prosecutors can threaten defendants with dozens of counts, raising the chances of getting a conviction on at least one, and use the threat of re-prosecution to extort plea bargains from defendants.

Professor Lissa Griffin of Pace Law School has written extensively on the “mixed verdict” problem in double jeopardy law. She notes that one underlying concern of the cases is that both sides—prosecution as well as defense—have one “full chance” to present their theories and evidence and get a result. That did happen in this case, although the conviction was reversed for error.  She also echoes the NAPD brief’s concerns: “One of the reasons we’re dealing with mixed verdicts is how many statutes there are,” she said in an interview. In some cases, “the proliferation of charges is outrageous.”  Where the government chooses to charge a defendant with violating several different statutes, mixed verdicts are a real possibility.  

The government relies heavily on one case, Powell—the case where a jury convicted the defendant of using the phone to commit a crime for which the jury found her not guilty. That seemingly inconsistent verdict stood.  But Griffin  pointed out that the Powell decision didn't  permit the government to prosecute Powell twice. It had its conviction and kept it; “successive prosecution is a very different double jeopardy issue” than inconsistent verdicts reached at the same time. she said.

In white-collar crime law, Randall Eliason of American University recently explained, “broad statutes prohibit things like fraud or corruption, and prosecutors are entrusted to exercise their discretion to determine how to apply those laws.” Eliason notes, however, that “in a series of decisions over the past few years, the Supreme Court has signaled it is becoming increasingly uncomfortable with such a system.”

Witness, for example, the court’s decision last term to reverse the conviction of a Virginia governor who solicited and accepted loans, golf outings, and sports-car rides from a wealthy constituent and gave favors in exchange. A reversal in the new case may take another weapon out of those prosecutors’ arsenals.

* This article originally misstated the nature of Rehnquist's opinion. We regret the error.