SCOTUS Dissects Double Jeopardy Case ‘Filled with Complexity’

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By Jordan S. Rubin

Justice Stephen G. Breyer said a double jeopardy case was “filled with complexity,” and it showed as the justices strained at oral argument Feb. 20 to resolve the scope of the Fifth Amendment right.

During argument in Currier v. Virginia—which proved more technical than impassioned—the high court pondered the degree to which defendants can use the guarantee against double prosecutions to effectively avoid standing trial for a separate crime after being acquitted of other crimes with common facts.

Given the apparent lack of consensus and different justices focusing on different aspects of the case, how the high court translates that complexity into its written decision, expected by late June, remains to be seen.

Three Charges, Two Trials

Michael Currier was charged with three crimes stemming from an alleged home break-in and theft of a safe that contained firearms. He was charged with being a felon in possession of a weapon for possessing the guns in the safe. The other two charges were for the break-in and theft.

The gun charge required the jury to know Currier was a felon, but that was irrelevant for the break-in and theft charges. To avoid unfairly prejudicing Currier in front of the jury on the theft and break-in counts, he and the prosecution agreed to “sever” the charges under Virginia law and have a separate trial for the gun count.

Virginia state prosecutors first tried Currier for the break-in and theft. He was acquitted of both. Then they tried him for the felon in possession of a weapon charge and he was convicted.

But under the double jeopardy clause of the Fifth Amendment, prosecutors shouldn’t have been able to introduce evidence of the theft and break-in at the gun trial because that issue was already settled by the acquittal in the first trial, Currier’s attorney Jeffrey L. Fisher argued to the high court.

Government attorneys form Virginia and the U.S. solicitor general’s office, which supported the commonwealth at the argument, countered that Currier waived the right to protest the second trial by agreeing to the initial severance.

Pyrrhic Victory?

The justices seemed split on the implications of Currier’s agreement to sever the charges into two trials.

Justice Elena Kagan suggested that defendants in situations like Currier’s may not be aware that they are giving up any double jeopardy rights.

Justice Anthony M. Kennedy, meanwhile, asked whether Currier had waived his rights nonetheless, suggesting to Fisher that he had.

“Doesn’t that really set up a waiver?” Kennedy asked FIsher.

Kennedy further implied that a victory for Currier might be a pyrrhic one, as he wondered whether it could cause the government to stop consenting to severances for fear of losing out on being able to try a defendant for all of his charged crimes.

That raised the question from Kennedy to Fisher: “Are you happy with what you wish for here?”

Breyer echoed Kennedy’s concern to a degree, though he was careful to point out to Fisher that he took issue with the government’s position as well.

“I have a problem with theirs too,” Breyer said, referring to the government attorneys’ arguments.

Hobson’s Choice

“How can you call this an agreement?” Justice Sonia Sotomayor asked deputy Virginia solicitor general Matthew R. McGuire, pouncing on McGuire’s point that Currier had agreed to the separate trials ahead of time and thus should be forced to bear the consequence of that choice.

A defendant is simply taking what the state law entitles him to, Sotomayor said.

“So why is it not a Hobson’s choice to be forced to give up the prejudice of a joint trial in order to retain the double jeopardy rights?” she asked McGuire.

During a colloquy with assistant to the U.S. solicitor general Erica L. Ross, Kagan re-visited the issue whether defendants know they are giving up rights by agreeing to severance. She suggested that a more express waiver ahead of time might help clarify any discrepancy there.

Breyer picked up on Kagan’s point.

“Let’s just be sure he waived it,” Breyer said. “Let him waive it expressly, if he wants to waive it, because after all the Constitution says that no person shall be held, you know, for jeopardy twice, or whatever it is,” he said, prompting laughter with his mangling of the text of the clause whose meaning his job is to divine.

Striking a more somber tone, Sotomayor sought, at one point, to cut through the apparent complexity, expressing frustration with the Virginia government’s position.

After McGuire said Currier waived his rights after agreeing to two separate trials, Sotomayor replied: “All right. So he has no rights under Virginia law, is what you’re saying.”

The case is Currier v. Virginia , U.S., No. 16-1348, argued 2/20/18 .

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

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

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