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Home , Double jeopardy, Double Jeopardy Clause, Due Process Clause, Prejudice (legal term)

Journal of and Criminology

Volume 59 | Issue 2 Article 10

1968 and Barry Siegal

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Recommended Citation Barry Siegal, Double Jeopardy and Due Process, 59 J. Crim. L. Criminology & Police Sci. 247 (1968)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. DOUBLE JEOPARDY

when such inspection will not interfere 2. The substance or text of the charge, with Department use. such as a complaint or indictment. D. Arrest reports, arrest records, supple- 3. The identity of the investigating and mentary reports and photographs will arresting unit and the length of the not be open for inspection to representatives investigation. of the press or other news media. 4. The circumstances immediately sur- E. From the time a person is arrested until the rounding an arrest, including the time proceeding has been terminated by or and place of arrest, resistance, pursuit, olherwise, the following types of information possession and use of weapons, and a will not be made available to the press or news description of items seized at the time media: of arrest. 1. Observations about an arrestee's charac- G. The officer in charge of an investigation ter or prior criminal record. or other incident involving the police will 2. Statements, admissions, confessions, or impose restrictions on access to the attributable to an arrestee. scene, or the release or information by 3. Results of investigative procedures subordinates when he believes it necessary such as fingerprints, polygraph examina- for the success of the investigation. Mem- tions, ballistics tests, laboratory tests, bers of the Department will seek the co- or showups. operation of news media representatives 4. Statements concerning the identity, in such matters. credibility, or testimony of prospective H. Arrest records and photographs in the witnesses. Inquiry and Identification Section files 5. Statements concerning or may be released only by order of the Super- argument in the case, whether or not intendent or his delegated representative. it is anticipated that such evidence or I. Members of the Department will take no argument will be used at trial. action to encourage or assist news media F. Members of the Department, subject to in photographing or filming a person being the limitations imposed in paragraph held or transported in police custody. li-E, may release the following infor- J. The provisions of this order are not in- mation to the press or news media: tended to restrict the release of infor- iY The arrestee's name, age, residence, mation which may be helpful in, effecting employment, marital status, and similar the arrest of a person who is a fugitive background information. from justice.

DOUBLE JEOPARDY AND DUE PROCESS

BARRY SIEGAL

Assume that a defendant is tried and convicted jeopardy, were available to defendants, of in the second degree, but on appeal his reflecting a policy of finality as to cases already is reversed on the basis of a prosecution decided on their merits. In England the courts induced procedural error at trial. Can he be held that this policy required that a defendant retried for the same offense, consistent with his convicted of a felony could not request a writ of Fifth Amendment right against being twice put error and also ask for a new trail. In other words, in -jeopardy? According to a longstanding rule if the error was substantial enough the the state has the power to retry a defendant under was reversed and the prosecution could not retry these circumstances. But has this always been the the defendant. Otherwise, the verdict stood. law, and what was the rationale in establishing it? I Mayers and Yarbrough, Bis Vexari: New Under the autrefois acquit and and Successive Prosecutions, 74 H.uv. L. Rv. 1, 4 autrefois convict, or what we now know as former (1960). BARRY SIEGAL [Vol. 59

The framers of the United States Constitution Mr. Justice Holmes, more logically but still quickly realized the importance of the maxim: in the realm of legal fiction, considered the problem "no man is to be brought into jeopardy of his to be one of continuing jeopardy. That is, jeopardy life more than once for the same offense," 2 and may be thought of as continuing until the "final" incorporated it into their final draft.' They were settlement of any one prosecution. 9 This notion struck, on the other hand, by the harshness, has yet to be accepted by the Supreme Court both from the point of view of the state and the since its position has been, at least in federal cases, defense, of the rule forbidding a retrial after that once an accused has been acquitted the govern- reversal. 4 That is, the state is clearly prejudiced ment can not appeal, even though there has been if it is foreclosed from seeking a new trial where a substantial legal error at trial.10 conviction has been reversed because of a pro- The actual reason why double jeopardy does cedural error. The defendant may also be hurt not attach where the defendant appeals a prior where the appellate court is reluctant to overturn conviction because of an error at trial is that the a verdict, knowing if they do the defendant will policy behind the guarantee is not applicable go free. in that situation. There seems to be no valid The first time the Supreme Court considered reason for unconditionally releasing the defendant the question of whether the Constitution was simply because there was some error committed intended to accord with the English rule barring at the first trail, at least absent a showing that retrial was in United States v. Gilbert.5 There the retrial would amount to unreasonable harassment Court felt compelled to follow English precedent of the defendant." The purpose of the double since the Constitution gave no indication of a jeopardy clause is not one of providing absolute contrary intent. Most American courts have since immunity from reprosecution, but only unreason- rejected this construction of the Fifth Amend- able reprosecution. 2 ment, and in United States v. Ball,6 the Supreme Court overruled Gilbert, holding that when a How Many Trials? defendant has a conviction set aside he may be The courts have never determined whether the retried for the same offense. Fifth or Fourteenth Amendments are transgressed The Ball doctrine has received unanimous merely because a defendant is tried several times. approval throughout the country, though there is a In Palko v. Connecticut" the Supreme Court, difference of opinion as to the rationale supporting it. The most predominant theory seems to be conceivable to force a defendant to give up valuable rights expressly granted by the Constitution in order that the defendant, by successfully appealing his to enable him to correct a fatal error. Kepner v. United prior conviction, has "waived" the protection States, 195 U.S. 100 (1904) (dissenting opinion).) against being retried for the same offenseY This 9 Kepner v. United States, supra note 8. Holmes, therefore, felt that the accused was not twice placed idea has been rejected by some authorities since in jeopardy whether the error on trial was in favor of it connotes a voluntary act, whereas, it is per- the accused or the government. 10Kepner v. United States, 195 U.S. 100 (1904). fectly clear the defendant cannot exercise a free " Van Alstyne, supra note 9, at 625. Even assuming uncoerced choice in this situation.8 that a retrial after reversal because of prosecution's error is not unreasonable, a question remains as to 2BLACKSTONE, Coi.rs xTrEs 335. whether reprosecution after government appeal be- 'U.S. CONST. amend. V. Protection against double cause of defense error violates this standard. The Court jeopardy can also be found in 41 state constitutions. in Palko v. Connecticut, 302 U.S. 319 (1937), upheld See Kneir, Prosecutions Under State Law and Municipal such a practice, apparently acknowledging a deference Ordinances as Double Jeopardy, 16 CoRNELL L.Q. 201 to the state's determination of this question. A similar (1931).4 federal situation was held unconstitutional. See, Kep- Mayers and Yarbrough, supra note 1, at p. 4. ner v. United States, supra note 10. 525 Fed. Cas. 1287 (C.C.D. Mass. 1834). 12 United States v. Tateo, 377 U.S. 463 (1964). 6 163 U.S. 662 (1896). 13302 U.S. 319 (1937). The majority reasoned that 7 E.g. MILLER, CRnawm L LAW, 534 (1937). the state was not trying to wear down the defendant S Green v. United States, 355 U.S. 184 (1957). Cf. with a multitude of trials, thereby implying that in VanAlstyne, In Gideons Wake: Harslier Penalties And some situations it may be constitutionally impermissi- The "Successful" Criminal Appellant, 74 YALE L.J. ble to retry a defendant if to do so would be unreasona- 606, 627 (1965). The author insists that to say that a ble. This dicta does not seem to have been taken very successful criminal appellant must "waive" a former seriously by other federal courts, however. For example, jeopardy "is either to deny that the protection is in United States ex rel. Hentenyi v. Wilkens, 348 F.2d. absolute or maintain that one can be required to forfeit 844 (1965) the Second Circuit allowed the state to a to absolute protection for the retry the defendant four times where the only reason privilege of appeal. (Holmes felt that it would be in- for the retrials was the state's own errors. If this does DOUBLE JEOPARDY although upholding the practice of state appeal People v. Piatt'8 presented another opportunity under the circumstances, did indicate that there for the Illinois courts to liberalize the rights of a may be some point where the number of trials defendant. There, the defendant was indicted on a could become unconstitutionally burdensome. charge of drag racing in violation of a state . In Ciucci v. Illinois,14 the court was faced with a Prior to trial the prosecution voluntarily dismissed situation where the defendant was indicted four the information and subsequently filed another different times for four different , although charging the defendant with reckless driving. all occurred at the same time and place and the The court of appeals affirmed a dismissal of the same evidence was introduced at all four trials. charge, holding that enactment of the statute The majority upheld the validity of this practice was not merely a prohibition against double since the defendant-under the statute-had jeopardy already found in state and Federal committed three distinct offenses notwithstanding constitutions. Rather, it is "concerned with the the fact that the violations were compendiously situation in which more than one offense is found committed in a single transaction. This decision to arise out of the same conduct or the same act has been criticized since it presented one of the and the defense of double jeopardy is unavailable. most objectionable double jeopardy situations. Clearly, therefore, it is immaterial whether That is, it appears that the subsequent trials jeopardy has attached to the first charge." 19 were the result of the prosecutor's determination to secure a death regardless of the effort Reprosecutionfor a Higher Offense After Reversal necessary. This seems hardly a sufficient state Suppose again that our hypothetical defendant interest to overcome the elements of harassment, was indicated for first and second degree murder. inordinate vexation, and great expense to the The jury convicts him of second degree murder defendant which were all present as a result of but is silent as to the first degree murder charge. i the number of trials. If the defendant's conviction is reversed on appeal, Illinois, however, is one state which has realized may he be retried on the first degree murder the harshness of the Ciucci decision and has charge? What if both involved completely modified it somewhat by statute. Its Criminal different elements of proof? Code provides: a) when the same conduct of The states are in disagreement regarding re- a defendant may establish the commission of more prosecution for a greater offense following re- than one offense, the defendant may be prosecuted versal of a conviction of a lesser offense. Most for each such offense and b) if the several offenses courts which allow the practice, and the Supreme are known to the proper prosecuting officer at Court until 1957, when applying the Fifth Amend- the time of commencing prosecution and are ment to federal cases, have adopted a theory of within the jurisdiction of a single court, they must "complete waiver." The term has been taken to be prosecuted in a single prosecution, except that mean that the defendant's conviction of the lesser the court may in the interest of justice order that offense and the jury's silence as to the greater one or more charges shall be tried separately. implies an of the greater. The defendant Further, a subsequent trial will be barred if for an upon appealing his prior conviction then relin- offense with which the defendant should have quishes his constitutional right not to be retried 6 been charged in a former prosecution under b). for the greater offense of which he was impliedly In one case, where the Illinois Supreme Court acquitted.20 Aside from those arguments advanced interpreted these provisions, it was held that a in opposition to the "waiver" theory as a rationale defendant could not be separately indicted for two different murders occurring in the same transaction, from Ciucci because there the defendant had engaged in four distinct acts, whereas the defendant's crime in where his participation was as co-conspirator and this case was the same at both trials; i.e. conspiring to the second trial was admittedly for the purpose of murder two men. obtaining greater punishment.17 1856 lI. App. 254, 206 N.E.2d 124 (1965). 19Id. at 127. not violate due process it is difficult to conceive of a 20Trono v. United States, 199 U.S. 521 (1905). multiple trial situation that does. Accord, Murphy v. Massachusetts, 177 U.S. 155, 158 14356 U.S. 571 (1958). (1900), where the Court viewed the doctrine in this way: 15Comment, 70 DicK. L. REv. 377, 389 (1966). As the judgement stands before appeal, it is a com- 16 ILL. REv. STAT. ch 38, Sec. 3-3 and 3-4 (1961). plete bar to any further prosecution for the offense 17People v. Golson, 32 Ill. 2d 398, 207 N.E.2d 68 set forth in the indictment, or of any lesser offense (1965). The court here distinguished the facts before it thereof .... but if he chooses to appeal from it and BARRY SIEGAL [Vol. 59

for retrial, per se,n it might also be said that the in the indictment is "an equally forceful and effec- verdict at the first trial is not a single entity, as tive acquittal of the higher offense. The defendant this theory seems to assume, but serves in a dual then waives his double jeopardy rights only as to 2 capacity; i.e. both as a conviction of the lesser the crime he appeals. 5 offense, and, according to traditional double Until 1957 the Supreme Court, when applying jeopardy principles, as a bar to a new prosecution the Fifth Amendment to federal reprosecutions, for the greater offense.2 That is to say, there advocated the "complete waiver" approach to the seems no logical reason for saying that a defendant problem.2 6 In Green v. United States27 the Court's can't appeal a lesser offense without losing his position was suddenly reversed. In that case the protection against being convicted for the greater. accused was indicted in a federal court of first- The two crimes are completely separable. degree murder and arson. At trial the jury was The "complete waiver" theory has received instructed as to first and second-degree murder some support under circumstances where the and arson, although second-degree murder is not lesser offense is not' included within the greater; a lesser-included offense since it requires the that is, where there are different elements of element of malice whereas first-degree murder does proof for each. In that case reversal without the not. The jury returned a verdict of guilty on the right to retry for the greater offense may be counts of second-degree murder and arson, but tantamount to acquittal where the prosecution's was silent as to the first-degree murder charge. theory couldn't support conviction of the lesser The court of appeals reversed the second-degree offense.n This is true, for example, where the jury murder conviction on the basis of insufficiency convicts the defendant of the lesser offense out of the evidence and remanded. At the second trial of sympathy for the prosecution where the facts the defendant was convicted of first-degree murder. did not allow for such conviction. This argument, The Supreme Court reversed on the basis of however, does not seem to be supporting the double jeopardy. First, it decided that under the fiction of waiver, but rather the necessity of circumstances presented here most courts would allowing the prosecution to retry the defendant regard the first jury verdict as an implied acquittal for the greater offense. The answer, therefore, of the first-degree murder charge. It followed, does not seem to be in this judicially created then, that in order to protect an individual from rationalization, but in a determination of the being subjected to the hazards of trial and possible situations in which society's interest in convicting conviction twice for the same offense, the prose- a criminal of a greater offense than that of which cution must be denied the right to retry for first- he was originally convicted outweighs his interest degree murder.29 Further, the "waiver" argument in being free from retrial of the greater offense. is illogical since it implies a rational choice. No Such a situation exists where the court has erred such choice could be made here, the court con- in allowing the jury to convict of the lesser crime. cluded, since it would be saying that a defendant, The courts which don't allow reprosecution for a in order to appeal an erroneous conviction of a greater offense have utilized a "partial waiver" lesser offense, would be required to barter away theory.2 The idea, here, is that conviction of a his constitutional right not to be reprosecuted of a crime of a lesser degree than the greater crime, crime punishable by death, of which he was and which is silent as to the other crimes included impliedly acquitted. The law should not place 0 to ask for its reversal he thereby waives, if successful, him in such an "incredible dilemma." It has his right to avail himself of the former acquittal of also been submitted that the court in Green em- the greater offense, contained in the judgement which 2 he has himself procurred to be reversed. 1See e.g., Johnson v. State, 27 Fla. 245, 9 So. 208 21See, supra note 9 and accompanying text. (1891). Accord, People v. Dowling, 84 N.Y. 478, 484 n2Note, 66 YALE L.J. 592 (1957). Accord, Johnson v. (1881), where the court declared, "His application for State 27 Fla. 245, 9 So. 208 (1891), where the court a correction of the verdict is not to be taken as more analogized the situation to one where there are a num- extensive than his needs.... The waiver is construed ber of defendants, some who are acquitted and others to extend only to the precise thing concerning which who are convicted. According to traditional waiver the2 6relief is sought." theory those who are acquitted would have to stand Supra note 16. trial again if the conviction of the others was reversed 27 355 U.S. 184 (1957). and remanded. 8D.C. Code, 1951, sections 22-401 and 22-2401 2 Note, supra note 18, at 597. which provides that he who, without purpose to kill, 24 See 61 A.L.R.2d 1146, where it is stated that 15 does so while perpetrating an arson is guilty of murder. states adhere to the doctrine that the accused can, in 21Green v. United States, 355 U.S. 184, 188 (1957). no case, be retried for the greater offense. 10Id. at 193. 1968]., DOUBLE JEOPARDY ployed the principally as a on second-degree murder. It may very well have means of protecting Green's statutory right of acquitted the defendant. If so, then there is appeal rather than his right to be free from re- clearly a substantial error prejudicial to the de- peated prosecutions." fendant's rights from which he can appeal, and The result in Green has been criticized prin- the basis for Green, the protection of the accused's cipally on its assumption that the jury in the first right to appeal, has some validity.U trial acquitted the defendant of first-degree murder In any case, when applied to the normal situ- when, in fact, all the elements of that crime were ation of a lesser-included offense, (where an error present.n It is evident then that the second-degree is committed, clearly prejudicial to the defendant), murder conviction was an instance of jury leniency the doctrine espoused in Green is a desirable one. and not under the circumstances, a sign of in- Here society's interest in convicting the accused nocence of the greater offense. If this is correct is met, since, if the requisite elements of the lesser then the trial judge, by erroneously instructing offense are present at the second trial, he will be on second-degree murder committed an error convicted, while the defendant's access to post- prejudicial to the government, since, had it not conviction remedies is in no way deterred. been so instructed, the jury may very well have Even though the Supreme Court has found it returned a verdict of guilty as to first-degree it be a violation of the double jeopardy protection murder. The conclusion to be reached is that to retry an accused for a greater offense in a federal under these circumstances, i.e., where the mistake court, it has yet to extend such a ruling to state of the trial court affected, to the government's reprosecutions. , the jury's determination of innocence The most recent case applying the Fourteenth of the higher offense, society's interest in determin- Amendment to a state reprosecution was United 3 5 ing the defendant's or innocence heavily States ex rel Hentenyi v. Wilkints The defendant outweighs his. interest in being unconditionally was indicted for first-degree murder. The jury, set free. Therefore, on remand the government instructed on first- and second-degree murder and should not be precluded from reprosecuting the , found the defendant guilty of defendant for first-degree murder. second-degree murder. On appeal the Appellate An alternative approach to the problem was Division of reversed and remanded for used in one case, where, under similar facts, it a new trial on the basis that error had been com- was held that since the defendant was not prej- mitted in the trial court's charge relating to venue udiced by the instruction as to second-degree and because of certain prejudicial comments by murder he has no right to appeal and the original the District Attorney. On retrial the accused was verdict must stand.n The difficulty with that charged with and convicted of first-degree murder, argument is that we can not be sure what the but again the judgment was reversed on the basis jury would have done had it not been instructed of the District Attorney's prejudicial conduct, and a third trial was ordered. At this trial, as in 31Van Alstyne, supra note 8, at 630 ".... while a the other two, the defendant was indicted on majority used a double jeopardy technique to reach its result, its opinion principally bears down on the risk first-degree murder and the jury found him guilty of reprosecution in deterring access to post-conviction of second-degree murder. After seeking writs of remedies and not the alleged ordeal which a second in both state and federal courts, trial might portend." 3 Note, supra note 18, at 598. The jury found the defendant's request was finally granted by the essential elements of first-degree murder when it con- Court of Appeals for the Second Circuit. victed the defendant of arson and second-degree mur- for the majority, der. The court of appeals concluded that the deceased's Judge Marshall, speaking death was caused by fire set by the defendant. Green v. held, first, that the of the United States, 218 F.2d 856, 859 (D.C. Circ. 1955). Fourteenth Amendment imposes some limitations The second-degree murder verdict was apparently an instance of jury leniency and not, under the circum- on a state's power to reprosecute an individual stances, a sign of innocence of the greater offense. Since for the same crime. This conclusion was obtained "the jury does not.., have the right to find a fact and then refuse to render the verdict which such a finding 34Also, the argument that "such a reprosecution was necessarily requires," [People v. Mussendin, 308 N.Y. cruel and inhuman imposing on the accused a 'hardship 558,563, 127 N.E.2d 551, 554 (1955)], it could be argued so acute and shocking that our policy will not endure that the jury's silence should be interpreted as an it' " seems more realistic under this assumption. United implied conviction rather than an implied acquittal. States ex rel Hentenyi v. Wilkins, 348 F.2d 844 (2d State v. Gordon, 87 Ohio App. 8, 92 N.E.2d 305 Cir. 1965). (1948). as Ibid. BARRY SIEGAL [Vol. 59 from a close scrutiny of Supreme Court decisions accused a fair trial.n Furthermore, such a pro- which, although never holding such reprosecutions mulgation by a federal court is clearly in line unconstitutional, have shown some indication with the policy behind the double jeopardy pro- that the Court would so hold if presented with hibition in disallowing unreasonable reprosecu- the problem. Assuming some limits, then, the tions,39 or as was stated in one case, we should Court felt that this case transgressed them. not allow the state, "to do better a second time" 41 The reason for so holding is that no matter what unless there is some overriding societal interest. Fourteenth Amendment standard the Supreme Even assuming the validity of this decision, Court will eventually adopt, the facts presented there is still a question of how the Supreme Court fall within such standard. If the validity of state will extend the double jeopardy protection to the reprosecution procedures were determined by a States. According to the doctrine of selective federal standard (which tests a conviction by the incorporation the Supreme Court selects those Fifth Amendment directly) or the basic core provisions of the Bill of Rights which it deems standard (where only the essential aspects of the fundamental and absorbs them whole and intact Fifth are applied) the decision in Green would into the Fourteenth Amendment. In the last few make the procedure in this case unconstitutional. years this theory has become increasingly popular 4 Even if a "fundamental fairness" approach were with the Court, ' and it is likely to be extended to adopted,36 this prosecution goes beyond the bounds the double jeopardy freedom. Also, adminis- of such a test. This determination is based on the tration of this standard would be the easiest of "insecurity and anxiety, the opportunity for any method since the States would be obliged to harassment, and the marginal increase in the follow the federal court's interpretation of the probability of convicting the accused of a crime protection, whereas under a "fundamental he did not commit by simply trying him again fairness" approach the courts will have to look . .. " - The court decided, finally, that even though at the facts in each case to determine whether they the accused was convicted only of second-degrees violate those "fundamental principles of murder, of which he was originally indicted, his and justice which are at the base of all our civil conviction was still a violation of due process and political institutions." 4 The advantage of because: (1) there was a reasonable probability the "fundamental fairness" test is that it allows that the conduct of the trial and the jury verdict for a degree of flexibility because the court can were affected by the defendant's conviction of judge the facts in light of changing concepts as first-degree murder and the fact that he was to minimum standards of fairness.4 In any case, presently charged with the crime; and (2) the the court in Wilkins recognized that under any state was constitutionally forbidden from prose- standard a similar practice as that employed here cuting defendant for first-degree murder following would be unconstitutional." completion of the first trial. 38Note, 18 S. CAP. L.REv. 328, 330 (1966). The view- This decision obviously goes farther than any point is here expressed that if the rationale for Green previous case regarding state reprosecution for a is that reprosecution for a greater offense "was found to place an unconscionable limitation on a 'vital societal greater offense, and, if accepted by the Supreme interest', assuring the accused a fair trial, free from Court, would result in the overruling of contrary legal error prejudicing his substantive rights," then the dilemma in which the defendant finds himself is decisions and in nearly half the states. no less incredible because it occurred in a state court. The viewpoint expressed by the court has, however, 39But see, Abstract, 57 J. Cans. L., C. & P.S. 60, received considerable support as being consistent 62 (1966), where the author puts forth the argument that if it is fundamentally unfair to retry the defendant with the Supreme Court's concern in giving the here for first-degree murder and if it is cruel and in- 36 human to do so, then it is equally unfair to retry him This test seems to be required by the decision in for the fourth time for any offense. "Why must he Palko v. Connecticut, 302 U.S. 319 (1937). See Henkin, endure four trials for murder only because the errors Selective Incorporation in the Fourteenth Amendment, of the state voided three previous trials?" 73 YALE L.J. 74. The author contends that Cardozo, 40 Brock v. State, 344 U.S. 424 (1953). "expressly reserved the possibility that some parts of 41 See, e.g., Pointer v. Texas, 380 U.S., 400 (1965), the federal protection against double jeopardy might-if Escobedo v. Illinois, 378 U.S. 478 (1964), Malloy v. you will-be incorporated in due process... ", when the Hogan 378 U.S. 1 (1964). abuse of defendant's rights is so flagrant as to require 4Palko v. Connecticut, 302 U.S. 319, 328 (1937). recognition by the court. 43Note, WAYNE LAW REvrEw, 685, 691 (1966). 37United States ex rel Hentenyi v. Wilkins, 348 44United States v. Wilkins, 348 F.2d 844 (2d circ. F.2d 844, 858 (1965). 1966). DOUBLE JEOPARDY

Reprosecution and Conviction with a HigherPenalty retrial, the defendant was found guilty and sen- After Reversal tenced to death. The Supreme Court In a final situation assume that our defendant reversed, holding that reasoning similar to that is indicted and convicted of first-degree murder set forth in Green is applicable to a case of dif- 5 but is only sentenced to life . On ferent punishments. In his dissent Justice appeal his conviction is reversed and remanded Sauer sharply criticized the majority for relying for a new trial. He is again found guilty of the on Green, since there the decision was based on an same offense but this time is sentenced to death. implied acquittal of the greater offense, whereas What are the policy considerations under these the court in Green expressly distinguished the circumstances? Are they the same as where he is facts before it from those where a greater punish- convicted of a greater crime on retrial? ment is given on retrial. The dissent concluded One authority has noted that the law is settled by pointing out the fallacy in the majority's that, after a reversal of a prior conviction, a statement that there is no difference between the defendant may again be tried for the same offense, legislature's dividing a crime into degrees, each even if a more severe penalty is given.45 This carrying a different punishment, and the court or notion is based on the traditional doctrine ex- jury dispensing different punishment for the same pressed in Stroud v. United States.46 There, the, offense. This argument "overlooks the funda- defendant, after having a murder conviction and mental principle that even though different life sentence reversed and a retrial granted, was degrees of a crime refer to a common name, each found guilty of murder with no recommendation of those degrees is in fact a different offense for dispensing with . The requiring proof of different elements for con- Supreme Court upheld the conviction, stating viction." 52 that there was no double jeopardy problem since Granting the logic behind the dissent's argu- all the trials were for the same offense. ments, the fact remains that, unless such a rule The vitality of the decision in Stroud has been as laid down here is accepted, defendants will be greatly diminished since the Court relied on a dissuaded from appealing merely because of the prior decision, Trono v. United States,a which held threat of greater penalty. Further, if what we that prosecution for a greater offense than that are seeking to prevent are unreasonable reprose- of which the defendant was originally tried is cutions, then such a policy is inconsistent with permissible after reversal of the theory of stricter penalties on retrial, because, if allowed, "waiver". The case has since been impliedly it would be giving the prosecution a second chance overruled by the Court in Green,43 although it to get a higher penalty just because of its own made a feeble attempt to distinguish Trono from mistake. the facts before it. It has also been argued that, Conclusion. The Supreme Court in double since the Court in Green was concerned with the jeopardy situations has again relied on the familiar effect of reprosecution on deterring access to balancing of interest approach to the problem post-conviction remedies, this reasoning is similarly even though outwardly claiming certain fictions applicable to the facts in Stroud and that it should to be the basis for their decisions. be expressly overruled. 49 It has long been established in this country The modern trend in state resentencing cases that once a verdict has been reversed the defendant is exemplified by Poeple v. Henderson.50 In that may be retried for the same offense. The courts case the defendant was tried and convicted of have attempted to rationalize this result by the murder and sentenced to . The erection of certain theories which in most cases appellate court reversed and remanded and, on have proved to be unworkable. In the final analysis 4561 A.L.R.2d 1141, 1143. 51Id. at 497, where the court stated that insofar 46 251 U.S. 15 (1919). Accord, People v. Grill, 151 as the basic purposes of double jeopardy are concerned, Cal. 592, 91 P. 515 (1907). there doesn't seem to be any difference between a divi- 4 199 U.S. 521 (1905). sion of a crime into different degrees by the legislature 48The court attempted to distinguish Trono on the or a selection among alternative punishments by the basis that the court there was viewing the problem jury. In either case the jury is making a decision to simply as an interpretation of a statute, even though convict of one crime with a specific penalty and not this was expressly denied by the Trono court. another. 49Van Alstyne, supra note 9, at 630. 52People v. Henderson, 60 Cal. 2d 486, 503, 386 1060 Cal. 2d 486, 386 P.2d 677 (1963). P.2d 677, 684 (1963).