Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial

Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trialIn a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court upheld the Virginia state courts’ conclusion that a defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. In […]

The post Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial appeared first on SCOTUSblog.

Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial

In a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court upheld the Virginia state courts’ conclusion that a defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. In a separate concurrence, Justice Anthony Kennedy refused to join the portion of the opinion that attempted to place the final nail in the coffin of Ashe v. Swenson’s constitutional issue-preclusion protection for acquittals. Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.

Briefly, Michael Currier was charged with three crimes growing out of a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had possessed the guns in the safe during the break-in. A Virginia court rule permits a felon-in-possession charge to be severed unless either party objects, and both sides agreed to the severance. Currier was tried first on the substantive charges and was acquitted. He then argued that the jury’s acquittal resolved the question of whether he had participated in the burglary and theft, so that the state was barred from introducing any evidence of his alleged involvement in those crimes. Because the possession-of-the-weapon charge required proof of that participation, he contended, issue preclusion precluded the second trial. Virginia argued that Currier’s consent to the severance waived his issue-preclusion claim. The court agreed, Currier was tried and convicted, and the conviction was upheld on appeal. The Virginia Supreme Court affirmed.

The Supreme Court agreed with the lower courts that the claim had been waived. It held that a defendant who consents to multiple trials waives not only the protection against multiple trials but also the protection against relitigation of an issue following an acquittal. In doing so, the court assumed without deciding that Ashe would bar the second trial in this case. The court’s precedent shows that this is correct. In Ashe, the court recognized a separate collateral estoppel, or issue preclusion, protection in the double jeopardy clause. The defendant was charged with robbing six victims in a poker game. At his first trial, he was acquitted of robbing one of them; in light of the record, the acquittal necessarily rested on a jury finding that he was not one of the robbers. When the prosecution attempted to try him again for robbery of the second victim, the court held the relitigation of the issue of the defendant’s identity as a robber violated the double jeopardy clause.

But the court held that Currier’s issue-preclusion claim had been waived. It did so by relying on three precedents: Jeffers v. United States, United States v. Dinitz and United States v. Scott. In Jeffers, the defendant had requested separate trials and, after being convicted on a lesser count, moved to bar a second trial on a greater count. In Dinitz, the defendant’s motion for a mistrial was found to be a waiver of a claim that a second trial was barred. In Scott, a defendant’s motion was held to waive a claim that a second trial was barred by double jeopardy. According to the court, these cases demonstrate that a defendant’s consent to a second proceeding waives all double jeopardy objections to that proceeding because the consent shows that the second trial was not the result of government overreaching, but, rather, a result of the defendant’s choice.

To this extent, Kennedy joined the opinion of the court.

But a four-justice plurality went further.

The plurality rejected on what it called “a narrower ground” Currier’s argument that his agreement to separate trials did not waive his claim that under straight Ashe analysis, the state was barred from producing evidence of his involvement in the crime for which he had been acquitted, even if it were allowed a second trial. Questioning whether issue preclusion following an acquittal is even protected by the double jeopardy clause, the court noted that last term in Bravo-Fernandez v. United States, it had warned that issue preclusion should have “guarded application … in criminal cases.” Relying on the clause’s “same offence” text, history and precedent, Gorsuch explained that civil collateral estoppel cannot be imported into the double jeopardy protection and, in addition, that the protection against issue preclusion in cases involving different offenses recognized in Ashe is inconsistent with the text and purpose of the double jeopardy clause. It’s difficult to describe this analysis as “narrow.”

In addition to the plurality’s unnecessary attempt to put the last nail in the coffin of Ashe, what is striking is the lack of any real discussion in the majority opinion of the protection afforded the finality of an acquittal. This is a core double jeopardy protection that exists independent of the protection against multiple trials and that is central to the issue-preclusion doctrine.

Ginsburg’s dissent recognizes these constitutional principles. She begins by identifying as separate the protection against multiple attempts by the government to convict (multiple trials) and the protection for the finality of acquittals. Because these are separate rights, the majority’s reliance on Jeffers, Dinitz and Scott is misplaced: None of those cases involved the finality of an acquittal. Moreover, Ginsburg points out, the majority’s reliance on Dowling v. United States as limiting the applicability of issue preclusion in criminal cases is inappropriate, because there the court simply refused to extend the issue-preclusion doctrine to preclude not proof of guilt but simply proof of other crimes under Federal Rule of Evidence 404(b).

Moreover, because the right against multiple trials and the right to the finality of an acquittal are separate rights, and because an issue-preclusion claim does not necessarily bar a second proceeding, a defendant’s agreement to separate trials does not waive an issue-preclusion claim. As Ginsburg explained, Currier took no action inconsistent with assertion of an issue-preclusion plea. Relying on well-established Supreme Court waiver analysis, under which the court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights,” she stated that waiver of Currier’s issue-preclusion claim cannot be implied from his agreement to separate trials; it is not even inconsistent with an agreement to separate trials.

Finally, even assuming that the majority is correct that, given the defendant’s agreement, this case does not involve the kind of government overreaching that the double jeopardy clause is designed to prevent, the dissent, relying on precedent, concluded that issue preclusion does not require a showing of government overreaching. The protection against overreaching is protected by the right against multiple trials. But, importantly, Ginsburg pointed out that today the prosecution has an unprecedented array of charges that can be brought based on a single criminal incident. For that reason, issue preclusion remains an important double jeopardy protection.

The outcome of the case was not particularly surprising. But double jeopardy has always confused the court, resulting in reversals of recently announced principles and arguably inconsistent results. Unfortunately, the court continues to demonstrate its longstanding confusion about the various protections contained in the double-jeopardy protection, conflating “same offense,” “successive proceedings” and “finality of acquittal” purposes, protections and precedents. This confusion is manifest in the 5-4 split. Although the plurality’s attempt to further limit Ashe is a bit surprising, it is not unexpected. Courts have attempted to limit Ashe to its unique facts. But the extent to which the opinion seeks essentially to eviscerate the issue-preclusion protection from criminal cases is something new. For now, that assault remains a plurality effort.

The post Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial appeared first on SCOTUSblog.

from http://www.scotusblog.com

Argument analysis: Grappling with the complexity of double jeopardy

Argument analysis: Grappling with the complexity of double jeopardyDuring yesterday’s oral argument in Currier v. Virginia, Justice Stephen Breyer stated what most constitutional scholars know about double jeopardy: “It’s complicated.” The argument reflected this complexity, with seven justices focusing on different branches of the double jeopardy protection and on different aspects of the case. In brief, Michael Currier was charged with three crimes […]

The post Argument analysis: Grappling with the complexity of double jeopardy appeared first on SCOTUSblog.

Argument analysis: Grappling with the complexity of double jeopardy

During yesterday’s oral argument in Currier v. Virginia, Justice Stephen Breyer stated what most constitutional scholars know about double jeopardy: “It’s complicated.” The argument reflected this complexity, with seven justices focusing on different branches of the double jeopardy protection and on different aspects of the case.

In brief, Michael Currier was charged with three crimes stemming from a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny, and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had briefly possessed the guns in the safe during his participation in the break-in. A Virginia court rule permits a felon-in-possession charge to be severed before trial with the agreement of the defendant, and, under Virginia Supreme Court precedent, felon-in-possession charges must be severed absent agreement of both parties to joinder. Accordingly, the state moved to sever the felon-in-possession charge and Currier agreed.

The commonwealth chose to try the substantive charges first and Currier was acquitted. He then invoked the issue-preclusion component of the double jeopardy clause, arguing that the jury’s acquittal had resolved the question of whether he had participated in the burglary in his favor. Thus, since the jury had acquitted him of participation in the burglary, the state was precluded from introducing any evidence of his alleged involvement in the break-in and theft. Virginia argued that Currier’s consent to the severance waived his issue-preclusion claim. The trial court denied the motion and Currier was convicted. The Virginia Court of Appeals upheld the conviction and the Virginia Supreme Court affirmed.

Representing Currier in the Supreme Court, Jeffrey Fisher argued that the double jeopardy right had not been waived. He maintained that issue preclusion – which protects the finality of an acquittal – is distinct from the right against multiple trials for the same offense. As he pointed out, issue preclusion does not even necessarily bar a second trial; it only precludes relitigation of an issue that the jury has determined in the defendant’s favor. Because the protections are different, Currier’s agreement to sever the counts to avoid prejudice at trial was not inconsistent with his right to assert the preclusive effect of his acquittal. Fisher distinguished the Supreme Court’s precedent, for example, Jeffers v. United States, in which the court held that a defendant who moved for a severance of counts waived his objection to multiple trials, on the ground that none of those cases involved a jury’s acquittal at the first proceeding. In those cases, the only issue was whether a defendant could be tried twice: The protection afforded to a jury’s acquittal was not in issue. Rather, Fisher stressed the court’s consistent protection for the finality of an acquittal, from Ashe v. Swenson through Turner v. Arkansas, to Yeager v. United States, in which the court upheld the application of issue preclusion to bar relitigation of mistried counts when a defendant was acquitted of some counts and the jury hung on others.

For his part, Matthew McGuire, representing Virginia, argued that the defendant’s agreement to sever the counts was a waiver of his issue-preclusion claim because it was an agreement to multiple trials. According to McGuire, “if [a defendant] doesn’t object to it,” he has “gone ahead willingly” with separate trials.” McGuire also rejected Fisher’s attempt to bring the case within the ambit of the Supreme Court’s issue-preclusion precedent rather than its multiple-trials cases. Accordingly, he argued that this case is controlled by the Jeffers court’s holding that an objection to multiple trials is waived by the defendant’s motion for a severance.

Erica Ross, representing the federal government as amicus, supported Virginia’s argument that the defendant had agreed not to invoke his right against multiple trials.

In their questioning, the justices grappled with the multiple strands of the substantive double jeopardy protection as well as the scope of a purported waiver by conduct. At the outset, Justice Sonia Sotomayor focused on the waiver issue. To her, Currier’s agreement to separate trials was not even an “agreement,” because it gave him no more than he was entitled to under Virginia law: Had he said nothing, the charges would have been severed. Thus, as in states where severance is not up to the parties but is mandatory, such as Nevada or Arkansas, the preclusive effect of the acquittal would not have been waived. She also suggested that Currier’s agreement to the severance was “a Hobson’s choice” between risking the prejudicial effect of a joint trial or asserting his double jeopardy protection. Justice Elena Kagan identified the different strands of double jeopardy protection – protection of the finality of an acquittal and protection against multiple trials – and  suggested that although a defendant’s agreement to multiple trials might be inconsistent with objecting to multiple trials after a conviction, that consent is not inconsistent with invoking the preclusive effect of an acquittal at the first proceeding. Moreover, Kagan rather pointedly suggested that in such a case, a colloquy followed by an express waiver of that protection should be required before a finding of waiver can be made.

Breyer seemed to accept the argument that issue preclusion might apply, or that an express waiver might be required, but he was concerned about the practical consequences of holding that the issue had not been waived. Breyer worried that such a holding would cause the prosecution routinely to oppose severance, resulting in jointly tried charges that would lead to appeals by defendants claiming the charges should have been severed, and draining resources. He suggested that it would be simpler, and perhaps better, to leave resolution of the scope of the double jeopardy protection for another day and to resolve the case on the question presented: whether issue preclusion applies when the defendant has agreed to separate trials under the circumstances here.

Justice Anthony Kennedy, joined by Chief Justice John Roberts, seemed to think that the defendant’s refusal to agree to joinder under Virginia law was effectively a waiver. In addition, like Breyer, Kennedy expressed concern about the practical effect of the Supreme Court’s holding if Currier prevailed – that the prosecution would refuse to consent and thus routinely bring the charges together – asking Fisher if he was “happy with what you wish for here?” In response, Fisher argued that in jurisdictions without Virginia’s rule, the prosecution might still want to sever either in the interests of an accurate verdict or to bring its strongest case first. If the prosecution secured a conviction, the second charge would likely be dismissed. Acquittals, as in this case, are extremely rare.

Justice Samuel Alito was clearly skeptical of Currier’s argument that the double jeopardy protection had not been waived. He suggested that Ashe’s collateral-estoppel doctrine simply provides one definition of “same offense” for double jeopardy purposes, and that issue preclusion is not a right distinct from the right against multiple trials for the “same offense.” In this respect, he indicated, the double jeopardy protection does not distinguish between multiple trials involving acquittals or convictions.

Justice Neil Gorsuch questioned whether “law of the case” might be a better argument than collateral estoppel, and was leery of a holding that he felt would make the collateral-estoppel protection stronger in criminal cases than in civil cases.

Justice Ruth Bader Ginsburg pointed out that the Virginia Court of Appeals, which issued the dispositive opinion below, affirmed because it believed that government overreaching was a necessary ingredient of issue preclusion, and that government overreaching was absent here. McGuire agreed, and conceded that a defendant does not need to prove prosecutorial overreaching in order to assert issue preclusion. Nevertheless, he suggested that issue preclusion is not appropriate when a defendant has agreed to successive proceedings.

Anyone familiar with oral argument in the Supreme Court would have noticed the exceptionally high intellectual plane of the Supreme Court’s discourse yesterday. The justices were clearly struggling, yet again, with the interpretation of the double jeopardy clause. Given the complexity of the substantive double jeopardy analysis and the court’s express disagreement about the significance of a defendant’s agreement to sever, it seems likely that the case will be decided on the issue of whether Currier waived his right to claim the preclusive effect of his acquittal. After all, that was the question upon which certiorari was granted and on which the lower courts have disagreed. And as Kagan indicated, the problem in this case may have arisen because the scope of an agreement to sever is unclear, and the court “could establish a background rule almost whichever way we establish the background rule and people would then be aware of the consequences going forward when they agree to sever.” But how the court will rule on that issue is, as noted above, “complicated.” Complex substantive double jeopardy doctrine would tend to support the conclusion that the preclusive effect of Currier’s acquittal was not waived, but practical concerns and other arguments may prevail.

The post Argument analysis: Grappling with the complexity of double jeopardy appeared first on SCOTUSblog.

from http://www.scotusblog.com

Argument preview: Revisiting the double jeopardy conundrum

Following a residential burglary during which a safe containing firearms was taken, Michael Currier was charged under Virginia law with breaking and entering, larceny, and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had briefly possessed the guns in the safe when he participated in […]

The post Argument preview: Revisiting the double jeopardy conundrum appeared first on SCOTUSblog.

Following a residential burglary during which a safe containing firearms was taken, Michael Currier was charged under Virginia law with breaking and entering, larceny, and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had briefly possessed the guns in the safe when he participated in the break-in. A Virginia court rule permits any felon-in-possession charge to be severed before trial with the agreement of the defendant. Pursuant to that rule, the state made a pretrial motion to sever the felon-in-possession charge, and Currier agreed.

Virginia tried Currier first on the breaking-and-entering and larceny charges and he was acquitted. After his acquittal, he moved to bar the second trial on the ground that in acquitting him, the jury at the first trial had resolved the question of whether he had participated in the burglary in his favor. He argued that the collateral-estoppel component of the double-jeopardy clause, as defined in the seminal case of Ashe v.  Swenson, prohibited relitigation of that issue at a second trial. The collateral-estoppel doctrine – also known as issue preclusion — provides that when an issue of ultimate fact is finally decided by an acquittal, relitigation of that issue is barred by the double-jeopardy clause. The trial court denied the motion and Currier was convicted of the felon-in-possession charge.

The Virginia Court of Appeals affirmed the conviction. It held that the core concern of the double-jeopardy clause – the prevention of prosecutorial oppression and overreaching —  is “not present when a trial proceeds on a charge that was severed from a combined original group of charges with the defendant’s consent and for his benefit.” The Virginia Supreme Court affirmed. In his petition for certiorari to the Supreme Court, Currier asked the justices to decide whether a defendant who consents to separate trials waives his right to the issue-preclusive effect of an acquittal. The eight lower courts that have addressed the waiver issue have split down the middle on this issue.

Currier argues that the core protection of the double-jeopardy clause guards against retrial following an acquittal, the basis for the issue-preclusion line of cases, and that Ashe and its progeny would preclude trying him on the charge of possessing guns during a burglary, because a jury has already determined that he did not take part in the burglary. He also argues that consenting to separate trials to avoid the clear prejudice that would result from “joining charges that permit the prosecution to introduce evidence of a prior conviction with charges that do not” does not automatically waive the issue-preclusive effect of an acquittal. In an amicus brief in support of Currier, the Cato Institute makes the additional argument that failure to apply the collateral-estoppel bar deprives the jury of its proper democratic role of deciding the facts.

For its part, Virginia, supported by amicus briefs from the federal government and 21 states, argues that Currier’s consent to sever the charges waived his right to invoke the issue-preclusive effect of his acquittal. The state also argues that Currier has failed to show that the jury at his first trial determined an issue of ultimate fact necessary to his second trial because the jury could have concluded that he did not participate in the actual break-in but had been at the scene and handled the weapons.

The parties’ arguments in this case reflect the court’s uncertainty about the scope of the terse double-jeopardy protection. Historically, the court has wavered between broad and narrow interpretations, reversing or overruling decisions within a short period of time. The collateral-estoppel component has been particularly challenging. In 1970, in Ashe, the Supreme Court first held that collateral estoppel bars a second trial after a jury has determined an issue of ultimate fact in the defendant’s favor. Ashe had been charged with robbing six poker players and was initially brought to trial on the charge of robbing one of them. At trial, it was clear that the robbery had occurred and that property had been taken, but the state’s case was weak on whether Ashe was one of the robbers. The Supreme Court ruled that the jury’s acquittal of Ashe for the robbery of one poker player barred a second trial for the robbery of another player in the same game, because the first jury had determined that Ashe was not one of the robbers. As precedent, Ashe has been criticized, based in part on its unique facts and on what has come to be viewed as its superficial analysis – an example of the due-process incorporation cases from that era.

Until Yeager v. United States, in 2009, the court narrowly applied Ashe, and never held a second trial barred by collateral estoppel. In Yeager, the court held that when a jury returns a mixed verdict acquitting a defendant of some charges and failing to agree on other charges, the fact of the hung jury does not interfere with the acquittal’s otherwise preclusive effect. In that situation, retrial on the mistried counts is prohibited. In a sense, then, the court changed course in Yeager and broadened the reach of the collateral-estoppel protection. In its next decision on this issue, however, last term in Bravo-Fernandez v. United States, the court refused to extend Yeager to a mixed-verdict case in which convictions on some counts were vacated rather than mistried.

The court also has been inconsistent in construing the purposes of the double-jeopardy protection, whether in clarifying the scope of the “same offense” language in the Fifth Amendment, outlining the prohibition against multiple punishments, or defining an acquittal. Yeager is one example. To be sure, as the court below held and Virginia argues, and as the court itself has recognized, one purpose of the double-jeopardy clause is to protect against government oppression. Yet the Yeager court applied collateral estoppel to bar a second trial even though the government had not sought separate trials of different charges, but had brought all of the charges together. In Yeager, the absence of a tactical decision to try charges separately did not prevent the application of collateral estoppel to bar the second trial. The court has expressed concern about the proliferation of available statutory charges and the opportunity for and extent of government overcharging. And, in Yeager and other cases, the court has consistently protected the finality of an acquittal regardless of whether the acquittal was erroneous or the result of any government overreaching.

Against this backdrop, Currier argues that the right to issue preclusion recognized in Ashe is distinct from the right against successive prosecution, which might arguably require government oppression; rather, issue preclusion focuses on one of the core double-jeopardy protections – preserving the integrity of an acquittal. According to Currier, the court’s protection of the finality of an acquittal, irrespective of any government oppression, has been clear. In determining whether a defendant is entitled to issue preclusion in a given case, therefore, the question of whether the government has acted oppressively is not significant. Virginia, on the other hand, asserts that the purpose of the double-jeopardy protection is to prevent government oppression and that no such oppression occurred here, where the petitioner chose to have separate trials.

Although the scope of the collateral-estoppel protection is certainly a subject of dispute, the focus of the oral argument is likely to be the waiver issue. Currier argues that his decision to sever the two sets of charges to avoid prejudice did not constitute a waiver of his double-jeopardy rights for two reasons. First, he maintains that consenting to separate trials to avoid prejudice does not waive the preclusive effect of an acquittal because asserting the right to a fair trial is not inconsistent with asserting the right to the preclusive effect of an acquittal. He distinguishes the Supreme Court’s decision in Jeffers v. United States, in which the court held that a defendant’s motion to sever counts for trial waives the right to object to separate trials of those counts, because in Jeffers, assertion of the protection against multiple trials was inconsistent with assertion of the right to have separate trials. Second, he maintains that he was forced to choose between two constitutional rights: his double-jeopardy protection and his right to a fair trial. Virginia relies on Jeffers and the court’s government-oppression precedent to argue that Currier’s consent demonstrates that there was no government oppression justifying extension of the double-jeopardy protection, and that Currier knowingly chose to undergo separate trials in exchange for an evidentiary benefit and has thus waived any double-jeopardy rights.

The post Argument preview: Revisiting the double jeopardy conundrum appeared first on SCOTUSblog.

from http://www.scotusblog.com