Lesser DUI Charge Blocked by Double Jeopardy in DUI-Based Vehicular Homicide

When the elements of a lesser charge are incorporated in another and greater crime, double jeopardy bars prosecutors from charging the defendants with the lesser crime

Reyna-Abarca v. People, 2017 BL 59224, Colo., No. 13SC725, 2/27/17.

The Colorado Supreme Court held that double jeopardy bars charges of lesser crimes that incorporate the same elements of similar, yet greater, crime. In the case, the defendant was charged with a DUI as well as vehicular homicide-DUI, which incorporates the same elements of the DUI charge. The court used the test developed in Schmuck v. United States, 489 U.S. 705, 716 (1989), which defines a “lesser included offense.” In the test, if all of the elements of a lesser offense are also included in the greater offense, then the lesser offense is barred.

http://www.bloomberglaw.com/public/document/ReynaAbarca_v_People_2017_CO_15_Court_Opinion.

Justice Court’s Lack of Subject Matter Jurisdiction Prevents Double Jeopardy Problem

After an initial conviction was vacated due to a justice court's lack of subject matter jurisdiction, the second conviction at the district court level does not implicate double jeopardy protections 

South Jordan City v. Summerhays, 2017 UT App 18.

The Utah Court of Appeals held there is no double jeopardy if a crime is improperly tried in a city’s justice court and is later vacated by the district court and properly retried later. In the case, the defendant gave a guilty plea in justice court for violating a protective order, a class A misdemeanor, and began serving a ten-day sentence. After the guilty plea, the defendant immediately appealed his conviction in district court, arguing that the justice court had no jurisdiction to consider a criminal charge above a class B misdemeanor. The district court then vacated the judgment and the defendant was released.

The city properly refiled charges in district court soon after and the defendant moved to dismiss the charges because of the Double Jeopardy Clause of the Fifth Amendment. The district court rejected the argument, finding that the justice court did not have jurisdiction to hear the case. Relying on Supreme Court jurisprudence regarding the double jeopardy, the Court of Appeals affirmed the district court’s ruling, finding that the justice court’s lack of subject matter jurisdiction prevented jeopardy from attaching from the initial conviction.

https://www.utcourts.gov/opinions/appopin/South%20Jordan%20City%20v.%20Summerhays20170126.pdf

Online Research by a Juror Leads to Mistrial

There was a “manifest necessity” to declare a mistrial after a court learned of a juror that researched issues related to the trial on their own.

Slavick v. Sequeira, 2016 BL 314700, D. Haw., No. 15-00424 DKW-KJM, 9/23/16.

A U.S. District Court in Hawaii found that a mistrial due to a juror’s independent research of an issue related to the trial created a “manifest necessity” that would not implicate an issue of double jeopardy. The issue arose because the defendant argued that a new trial after the initial mistrial would create an issue of double jeopardy. The court rejected this argument, finding that the trial court did not “falsify” reasons for the mistrial and that there was a “manifest necessity” for a second trial. The court further expressed concern over the problems of technology during a trial, stating, “after the jury had been exposed to the extraneous information, ‘the interests of public justice would not be served by a continuation of the [trial] proceedings[,],' and that manifest necessity existed to declare a mistrial.” The opinion continued by saying, “Because the mistrial was supported by a valid determination of manifest necessity, the second trial that resulted in [the defendant’s] conviction did not violate the Double Jeopardy clause.”

https://www.bloomberglaw.com/public/desktop/document/Slavick_v_Sequeira_No_1500424_DKWKJM_2016_BL_314700_D_Haw_Sept_23?1476465528 

Prosecutor Baiting a Mistrial Bars Any Future Retrial for the Same Crime

After making flagrant statements at trial in an attempt to provoke a mistrial, a prosecutor created a double-jeopardy bar against retrying the same defendant

State v. Zisa, N.J. Super. Ct. Law Div., No. 10-10-01812-I, 8/23/16.

   The New Jersey Supreme Court found that purposefully unprofessional conduct on behalf of the prosecution team in a criminal trial in an attempt to bait a mistrial bars a retrial of a defendant. This case follows a similar line of cases stemming from Oregon v. Kennedy, which barred retrials after a successful defense motion for a mistrial if the defendant could show that the prosecutor in the case purposefully provoked the defense to make the mistrial motion in the first place.
 

   The court reached its conclusions because the prosecutor continuously made inadmissible, improper, and prejudicial statements about the evidence and facts about a state witness, even though it was unsubstantiated and inadmissible. The court said, “It strains credulity that such a seasoned prosecutor, with years of trial experience, could be so ignorant to the rules of evidence.” Additionally, the court noted the prosecutor’s unusual ambivalence towards the five mistrial motions made by the defense. 
 

http://src.bna.com/ibq

Murder Retrial Barred Because Gun Thrown Out In Other Case

Man cannot be prosecuted for murder when the prosecutor's theory was that he shot the victim with a gun that he had been acquitted of owning in a prior trial.

In re Moi, 2015 BL 356241, Wash., No. 89706-9, 1029/15

    The defendant was charged with murder. Relatedly, but stemming from a juvenile conviction, the defendant was charged with unlawful possession of a weapon. Because of the unusual situation, the parties agreed to let the judge decide the gun charge, and to have the jury decide the homicide charge.

     The jury could not reach a verdict on the homicide charge and a mistrial was declared. The trial judge acquitted the defendant of the unlawful possession of a weapon charge. The court ruled that the firearm acquittal bars retrial for the murder charge as a matter of collateral estoppel.

     The court reinforced its decision with the Pennsylvania Supreme Court ruling in Commonwealth v. States, 938 A.2d 1016 (Pa. 2007). In that decision, the court determined that there was a double jeopardy bar to retrial because there had been mistrial after a hung jury could not make a decision, and the trial court judge had acquitted the defendant on a related charge upon which the remaining counts depended.

http://www.bloomberglaw.com/public/desktop/document/In_re_Moi_No_897069_2015_BL_356241_Wash_Oct_29_2015_Court_Opinion?1448121178