Giving Full Effect to a Jury Acquittal by Jeffrey L

LOS ANGELES & SAN FRANCISCO

www.dailyjournal.com

TUESDAY, FEBRUARY 20, 2018

PERSPECTIVE Giving full effect to a jury acquittal By Jeffrey L. Bornstein the defendant agree to a single a substantially improved case Constitution’s protection against and Andrew G. Spore proceeding, “a trial court must and was permitted to present double jeopardy, holding in Ashe sever a charge of possession of a evidence of Currier’s prior felony v. Swenson that “when an issue he U.S. Supreme Court firearm by a convicted felon from conviction, along with other of ultimate fact has once been will hear oral arguments other charges that do not require circumstantial evidence that had determined by a valid and final TTuesday in an important proof of a prior conviction” been excluded from the first judgment, that issue cannot again double jeopardy case that asks (emphasis added). Accordingly, trial on procedural grounds. The be litigated between the same “whether a defendant who parties.” The nature of this right consents to severance of multiple was well described by Judge charges into sequential trials loses To retry a different charge on precisely the same Henry Friendly in United States his right under the double jeopardy underlying facts with the same witnesses but v. Kramer, a decision relied clause to the issue-preclusive before a different jury would unfairly give the on by the Ashe court. Judge effect of an acquittal.” Based government a mulligan and would undermine the Friendly wrote, “The Government on Supreme Court precedent, is free, within the limits set by the we believe the court is likely finality of the first jury’s acquittal. Fifth Amendment, to charge an to hold that, where a defendant acquitted defendant with other has been found not guilty by the trial court ordered severance, Virginia Court of Appeal and its crimes claimed to arise from the a jury, the defendant’s double and Currier did not oppose. The Supreme Court affirmed Currier’s same or related conduct; but it jeopardy rights prohibit a retrial commonwealth decided that conviction, finding that Currier’s may not prove the new charge of the same underlying facts in Currier would be tried first as consent to severed proceedings by asserting facts necessarily connection with a different charge to the charges of breaking and had waived his right to any issue determined against it on the first in a subsequent trial, even where entering and grand larceny. A jury preclusive effect of the acquittals trial.” the defendant has consented to acquitted him of those charges. obtained in the first trial. There is little reason to think severance of the charges. When the commonwealth The key issue is whether a that the Supreme Court will In Currier v. Commonwealth pressed forward with the felon- defendant should be forced to move away from this approach. of Virginia, the defendant was in-possession trial, it sought choose between a single trial As recently as 2009’s Yeager charged with breaking and to use the same witnesses and wherein prejudicial evidence is v. United States, the court has entering, grand larceny and being evidence adduced in the first trial. freely admitted and a severed reinforced the Ashe holding. In a felon in possession of a firearm. Currier argued that the issue of proceeding wherein a finding a majority opinion joined by All three counts arose out of the his involvement in the theft of the of innocence by the jury in the both Chief Justice John Roberts theft of a large safe that contained safe had been definitively decided first trial will have no bearing and Justice Anthony Kennedy, cash and guns stolen from the by the jury in his first trial, and whatsoever on the second. We the court wrote that “[a] jury’s home of a Virginia resident. that the commonwealth could not think that the U.S. Supreme Court verdict of acquittal represents the Currier was alleged to be a therefore relitigate that issue to try will find that, even given Currier’s community’s collective judgment participant in the underlying theft to prove that Currier possessed consent to severance, the acquittals regarding all the evidence and and, in the course of that crime, to the firearms while he possessed in this case preclude a retrial of the arguments presented to it,” have come into possession of the the stolen safe. Based on the fact of Currier’s involvement in the and found that the defendant’s firearms in question. issue preclusive effect of the underlying robbery. acquittal on certain charges in Virginia law provides that acquittal, Currier asked the court The rule of issue preclusion a mixed verdict could preclude “evidence that a defendant has to dismiss the felon-in-possession was imported from the civil the government from retrying committed crimes other than the charge without trial, because the law by Supreme Court Justice that defendant as to other counts offense for which he is being commonwealth had proffered Oliver Wendell Holmes Jr., who that had resulted in hung jury tried is highly prejudicial.” But no evidence in support of any remarked that this safeguard in the same trial. And the lower proving a felon-in-possession alternative theory of possession should be at least as robust in federal courts have followed this charge requires proof of a prior by Currier. The trial court denied criminal proceedings as it is rule faithfully, as then-Judge felony conviction. Virginia law these requests, and Currier was in civil. In 1970, the Supreme Neil Gorsuch observed, writing therefore mandates that, unless convicted at his second trial; Court confirmed that issue for the 10th U.S. Circuit Court both the commonwealth and the commonwealth presented preclusion is an aspect of the of Appeals in United States v. Wittig, the double jeopardy clause mulligan and would undermine severance, and many jurisdictions to honor both presents no great does not just prohibit subsequent the finality of the first jury’s have rules like Virginia’s, which burden on the government or the trials for the same offense, but acquittal. In the criminal law, require or strongly favor severance judiciary, but can make all the also “restrict[s] the proof the an acquittal by jury is singular, of certain types of charges. For difference to a criminal defendant. government might seek to use” sacrosanct, and should possess instance, Turner v. Arkansas, a at the second trial, by virtue of the same trappings of finality that decades-old double jeopardy case Jeffrey L. Bornstein, a partner the issue preclusive effect of the attach to final judgments in the relied on by Currier, itself involved with Rosen Bien Galvan & first trial. civil context. mandatory severance of murder Grunfeld in San Francisco, In Currier’s case, the first jury Currier does not dispute that charges from other charges under focuses his practice on white found that he did not participate the commonwealth would have Arkansas law. These procedural collar criminal defense. in the robbery of the safe that the power to try him as a felon-in- safeguards are designed for the Andrew Spore is an associate contained the firearms. The possession if it had an alternative benefit of the defense, to avoid with RBGG. commonwealth already had theory as to how he came to undue prejudice and ensure a fair its bite of the apple as to this possess the firearms in question. trial. Defendants should not have particular set of facts, and it failed But the commonwealth sought to to choose between their right to prove Currier’s involvement. prove facts against Currier in his against double jeopardy and the To retry a different charge on second trial that had necessarily protections against prejudice precisely the same underlying already been decided in Currier’s wisely adopted by many states facts with the same witnesses favor by the first jury’s acquittal. or imposed by many jurists. As but before a different jury would There are many reasons why a Currier points out, the rights at unfairly give the government a defendant may seek or consent to issue are not incompatible and BORNSTEIN SPORE