Double Jeopardy Protection Hangs on ‘By a Thread’ (1)

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By Kimberly Robinson and Jordan S. Rubin

Double jeopardy doesn’t prevent a second trial on different charges when the defendant specifically consented to separate trials, the U.S. Supreme Court said June 22.

After being acquitted at trial of break-in and theft charges, Michael Currier’s subsequent gun trial—based on the same underlying facts—violated his Fifth Amendment right against double jeopardy, he said.

The Supreme Court disagreed, in a 5-4 decision by Justice Neil M. Gorsuch.

A “defendant’s consent dispels any specter of double jeopardy abuse that holding two trials might otherwise present,” the court said.

The case split the court along ideological lines, with Justice Ruth Bader Ginsburg dissenting for the court’s more liberal wing.

But the court couldn’t decide whether the double jeopardy clause prohibited relitigation of particular facts determined by the jury, or only particular charges. It split 4-1-4 on that question.

The court’s assault on the preclusive effect of double jeopardy on factual determinations was “somewhat alarming,” Lissa Griffin, of the Elisabeth Haub School of Law at Pace University, White Plains, N.Y., told Bloomberg Law.

Because Justice Anthony M. Kennedy did not join that part of the court’s opinion, though, that arm of the court’s double jeopardy jurisprudence “endures, if by a thread,” George C. Thomas III, of Rutgers Law School, Newark, N.J., told Bloomberg Law.

Two Rights

The court has recognized two different double jeopardy rights in the past, Griffin said.

The right against successive prosecution prohibits the government from retrying an acquitted defendant for the same offense, she said. The protection for the finality of an acquittal prohibits the government from relitigating a previous jury’s factual determinations, Griffin said.

The plurality focused on the first, noting that the double jeopardy clause “speaks not about prohibiting the relitigation of issues or evidence but offenses,” Gorsuch wrote.

“To prevent a second trial on a new charge, the defendant must show” that the statutory elements between the two charges against him overlap; it’s not enough that there’s a substantial overlap in the proof offered, Gorsuch said.

Empty Acquittal

But the dissent focused on the second double jeopardy protection, Griffin said.

It’s clear that four members of the court are ready to limit or overrule that protection, Professor Thomas said.

That protection for finality comes from Ashe v. Swenson, he said.

Ashe has often been criticized as limited to its unique facts,” Griffin said.

There, the court “recognized that a not guilty verdict would sometimes bar prosecution of a different offense, if, as in Ashe, the acquittal meant the defendant could not have committed any of the crimes,” Thomas said.

“The rationale of Ashe is that once a jury finds a defendant not guilty of facts necessary to prove crime two, that finding should be respected,” he said.

The only difference between that case and this one is that here, “Currier asked to be tried separately,” Thomas said.

“Only the most sterile, empty formalism and literal reading of the text of the Constitution would hold that asking to be tried separately somehow empties an acquittal of meaning,” he said.

‘Judge’ Gorsuch

For now, the issue remains good law.

Kennedy stopped just short of curtailing double jeopardy protections for factual determinations, Jeffrey L. Fisher, of the Stanford Law School Supreme Court Litigation Clinic, told Bloomberg Law. Instead, Kennedy focused only on the effect of the defendant’s consent.

But the issue could come back to the court, Fisher, who represented Currier in the case, said. The Virginia Attorney General’s Office did not return a request for comment.

Fisher noted that one of the leading cases supporting the application of double jeopardy to factual determinations comes from then-Judge Gorsuch while he was on the U.S. Court of Appeals for the Tenth Circuit.

Until the Supreme Court says otherwise, Fisher said he hopes lower courts will continue to follow Judge Gorsuch, rather than Justice Gorsuch.

Possessing Guns

Currier was charged with burglary, grand larceny, and possessing a firearm after having been convicted of a felony.

Worried that the admission of evidence regarding his previous felony convictions—also for burglary and larceny—would prejudice the jury, Currier agreed to sever the two trials.

The jury in the first trial acquitted Currier of participating in the theft of a safe full of guns.

That means the second jury shouldn’t be allowed to find that Currier “possessed” those same guns after the jury determined he wasn’t involved, he argued.

The Supreme Court didn’t adopt that reasoning.

The case is Currier v. Virginia , U.S., No. 16-1348, affirmed 6/22/18 .

To contact the reporter on this story: Kimberly Robinson in Washington at, Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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