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Note
A Closer Look at the Supreme Court and the
Double Jeopardy Clause
I. INTRODUCTON
The fifth amendment of the United States Constitution states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."' In recent years, the United States Supreme Court has struggled when attempting to apply the general words of the double jeopardy clause to specific cases.^2 During the^ late 1970s and early 1980s, a period in which the Court began to decide double jeopardy cases more frequently than it had before, 3 the Court readily admitted that its decisions were not the product of a coherent doctrine. 4 Chief Justice Rehnquist once stated that the double jeopardy clause is "one of the least understood ... provisions of the Bill of Rights. [The] Court has done little to alleviate^ the^ confusion^ ....^^5 Nevertheless, since the early 1980s, the Court has seemed less tentative when addressing double jeopardy^ questions,^6 which^ suggests^ that^ the^ Court believes^ that^ its "closer look" 7 at the clause in the 1970s did "alleviate the confusion." Yet despite this apparent clarity in the Court's more recent decisions, the Court continues to struggle when attempting to apply the clause. This Comment pursues the suggestion of one commentator that a "functional" analysis will enable the Court to apply the double jeopardy clause consistently. 8 A functional analysis "identifies the substantive values within ... the Constitution, and applies these values in the context of our contemporary culture." 9 The Comment will
- U.S. Const. amend. V. 2. See McKay, Double Jeopardy: Are the Pieces the Puzzle? 23 WASHBURN L.J. 1, 6 (1983).
- Westen & Drubel, Toward a GeneralTheory ofDouble Jeopardy, 1978 Sup. Cr. Rav. 81, 83. Possible reasons for the increase in double jeopardy cases include the incorporation of the fifth amendment's double jeopardy protection into the fourteenth amendment in 1969, see Benton v. Maryland, 395 U.S. 784, 796 (1969), and the amendment of 18 U.S.C. § 3731 (1982) in 1971 to allow the government to appeal in criminal cases except "where the double jeopardy clause of the United States Constitution prohibits further prosecution." Omnibus Crime Control Act of 1970, tit. III, § 14(a)(1), Pub. L. No. 91-644, 84 Stat. 1891. See also United States v. Wilson, 420 U.S. 332, 339 (1975) ("Now that Congress has removed the statutory limitations and the Double Jeopardy Clause has been held to apply to the states... it is necessary to take a closer look at the policies underlying the Clause in order to determine more^ precisely the boundaries of the Government's appeal rights in criminal cases."). 4. See Albernaz v. United States, 450 U.S. 333, 343 (1981) ("the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator"); United States v. DiFrancesco, 449 U.S. 117, 133-34 (1980) (double jeopardy clause's "application has not proved to be facile or routine"); Burks v. United States, 437 U.S. 1, 9 (1978) (Court's holdings "can hardly be characterized as models of consistency and^ clarity").
- Whalen v. United States, 445 U.S. 684, 699 (1980) (Rehnquist, J., dissenting). 6. Compare Albernaz v. United States, 450 U.S. 330 (1981), and United States v. DiFrancesco, 449 U.S. 117 (1980) with Missouri v. Hunter, 459 U.S. 359 (1983), and Bullington v. Missouri, 451 U.S. 430 (1981).
- United States v. Wilson, 420 U.S. 332, 339 (1975).
- McKay, supra note 2, at 1.
- Id. at I n.4.
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first trace the double jeopardy clause's historical background, since the Court primarily relies on history when attempting to apply the clause. It will then enumerate the clause's possible functions. Lastly, it will examine three specific double jeopardy questions and discuss recent Supreme Court decisions relating to those three questions. This discussion will show how the Court's current approach creates haphazard results and will suggest how the Court might have decided recent cases if the Court had been more conversant with the clause's functions.
II. A HISTORICAL LOOK AT THE DOUBLE JEOPARDY CLAUSE The Court's recent double jeopardy decisions have relied primarily on the numerous cases that the Court decided during the late 1970s and early 1980s, which in turn relied primarily on the Court's interpretation of the clause's history.' 0 Therefore, an understanding of the Court's more recent decisions requires a brief look at the clause's history and an explanation of why the Court should not use a historical approach in double jeopardy cases. The origins of the double jeopardy concept are obscure because the concept is nearly universal. Some kind of double jeopardy maxim has existed "in almost all systems of jurisprudence throughout history."'I The English common law was no exception, since it recognized the idea that "a man's life shall not be put twice in jeopardy for the^ same offense."^ 1 2 The word "jeopardy" first appeared in an English law report in 1421.13 Fifteenth century cases using the term said that a plea of not guilty put a defendant's life "in jeopardy."' 4 However, the term "jeopardy" did not have the legal significance then that it has today. 15 At that time, the law usually associated "jeopardy" with actions for malicious appeal or for conspiracy to procure an indictment for felony. A plaintiff bringing either type of action against his alleged persecutor had to show that the defendant's actions had caused the plaintiff to put his life "in jeopardy" (by pleading not guilty). 1 6^ The maxim that stated a prohibition against twice putting a person in jeopardy did not emerge until the mid-sixteenth^ century.^17 Despite the absence of^ the^ term^ "double^ jeopardy,"^ the common^ law^ had recognized the general concept by the thirteenth century, although^ England's^ archaic system of dual prosecutions lessened^ the^ usefulness^ of^ double^ jeopardy^ protection.'^8
10. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 133 (1980); Brown v. Ohio, 432 U.S. 161,165 (1977); United States v. Wilson, 420 U.S. 332, 339-42 (1975). 11. Note, Heath v. Alabama-Contravention of Double Jeopardy and FullFaith and CreditPrinciples, 17 Loy. U. CHI. L.J. 721, 723 (1986). See also Benton^ v.^ Maryland,^^395 U.S.^ 784,^795 (1969).
- Kirk, "Jeopardy" During thePeriod of theYear Books, 82 U. PA. L. REv. 602, 616-17 (1934). 13. Id. at 613.
- Id. at 611. 15. Id. at 613, 615. 16. Id. at 613-16. 17. Id. at 616-17. But see id. at 615 (citing Hil. 21 Hen. VI, f. 28, pl.12 (1443)) (judge's reference, over his colleague's objection, to a prohibition against being placed "twice in jeopardy"). 18. Hunter, The Development of the Rule Against Double Jeopardy, 5 J.LEGAL HiSr. 3, 8-10 (1984).
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The legislative history of the double jeopardy clause^ is^ slim.^ Congress apparently did intend the clause to conform to "universal practice" in Great Britain and the United States. 3 1^ Congress also changed the clause's original wording. Representative Egbert^ Benson^ of^ New^ York^ objected^ to^ the^ words^ "or^ trial"^ on^ the grounds that^ they^ might^ be^ construed^ to^ bar^ a^ convicted^ defendant's^ appeal, something not required^ by^ the^ principle^ "that^ no^ man's^ life should more than once^ be put in jeopardy for the same offence.'"32 Benson moved that the words "or trial" be stricken and Congress adopted the motion, eventually changing the words "pun- ishment or trial"^ to^ the more Blackstone-like^ "jeopardy^ of^ life^ and^ limb."^ ' Since the archaic wording of the double jeopardy clause "is not a clear declaration of policy," '34^ a court attempting to apply the clause must turn to non-textual sources. 35 The Supreme^ Court^ has^ chosen^ to^ turn^ to^ history.3 6^ However, the Court's historical approach does not suffice to determine double jeopardy clause questions for three reasons. First, historical ambiguity lessens the usefulness of a strictly historical approach. 37 In some cases in which the Court^ used^ historical arguments, it could easily have used other historical arguments to support different resolutions of the same case. Secondly, even if one could recreate the intended role of double jeopardy protection at the time of the adoption of the Bill of Rights through a narrow "interpretivist" approach, 38 that approach could not adequately define the clause's function in present-day society because such an approach might fail to take account of "changes that have occurred in our criminal justice system over the past two hundred years." ' 3 9^ Thirdly, a historical approach is inconsistent with the approach the Court takes to other fundamental constitutional rights. The Court, when it recognized that^ the^ double^ jeopardy^ clause^ applies^ to^ the^ states^ through^ the^ due process clause^ of^ the^ fourteenth^ amendment,^ stated that^ "the^ double^ jeopardy prohibition of the [fjifth [a]mendment represents a fundamental ideal in our constitutional heritage .... ",40 The Court^ has^ generally rejected^ a^ strict historical approach to issues involving other fundamental constitutional rights^ and^ has^ instead taken a functional approach. 4t^ The Court should do^ the same when^ dealing^ with^ the fundamental protection against double jeopardy.
- Id. at 32.
- Green v. United States, 355 U.S. 184, 202 (1957) (Frankfurter, J., dissenting).
- SILER, supra note 28, at 30-31.
- Id. at 32.
- Id. at 14.
- McKay, supra note 2, at 11. See Gore v. United States, 357 U.S. 386, 392, reh'gdenied, 358 U.S. 858 (1958) (double jeopardy "is rooted in history and is not an evolving concept like due process"). See supra text accompanying note 10.
- See infra text accompanying notes 87-90, 158-61.
- See Tushnet, Following the Rules Laid Down:A Critiqueof Interpretivism and Neutral Principles, 96 HARv. L. REv. 781, 793 (1983) ("[i]nterpretivism calls^ for^ an^ historical inquiry^ into the^ intent^ of^ the^ framers");^ Perry, Interpretivism, Freedom of Expression, and^ Equal^ Protection,^^42 Ouro^ ST.^ L.J.^ 261,^ 284-301^ (1981).
- McKay, supra note 2, at 16. See also Findlater, Retrialafter^ a^ Hung^ Jury:^ The^ Double^ JeopardyProblem,^^129 U. PA. L. REv. 701, 737 (1981) ("[d]ouble jeopardy is a constitutional doctrine, and, as such, its hoary common law antecedents should not from their graves control and distort its policies.").
- Benton v. Maryland, 395 U.S. 784, 794 (1969).
- See McKay, supra note 2, at 16 n.112, 17 n.114 (citing functional approach to freedom of speech, right to counsel, an accused's right to trial by jury, and cruel and unusual punishment). See also Taylor v. Illinois, 108 S. Ct. 646, 651-52, reh'g denied, 108 S. Ct. 1283 (1988) (compulsory process clause of the sixth amendment).
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Thus, a historical approach is inadequate for three reasons: (1) historical ambiguity; (2) changes in the criminal justice system since the time of the adoption of the Bill of Rights; and (3) consistency with the Court's method of applying other constitutional provisions.
JT. A FUNCTIONAL LOOK AT THE DOUBLE JEOPARDY CLAUSE Green v. United States^42 is the starting point for an examination of the double jeopardy clause's function, because in Green the Court discussed the clause's "underlying (^) idea, (^) "' 43 which (^) is that:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent^ he^ may be found guilty.- According to this statement, the clause protects two values, 45 both of which are threatened by "repeated attempts to convict an individual for an alleged offense" and both of which arise from the fact that the^ state^ has^ more "resources^ and^ power"^ than an individual defendant. The first value is the defendant's "finality" interest. 46 Repeated attempts to convict an individual compel a defendant to live "in a continuing state of anxiety and insecurity. "47 Once accused of a crime, a defendant "must suffer the anxiety of not knowing whether he will be found criminally liable and whether he will have to suffer a prison term.' 48 Without double jeopardy protection, a defendant's ability to conduct his life would be hampered by the fear of renewed exposure to the "embarrassment, (^) expense and ordeal" of trial. (^49) The clause thus protects (^) "the accused's interest in repose" 50 or his interest in "being able, once and for all, to conclude his^ confrontation with^ society."^ '5 1 The second value is a need to prevent the state from "enhancing the possibility
- 355 U.S. 184 (1957).
- Id. at 187.
- Id. at 187-88. The Court has generally adhered to Green's definition of the clause's purpose. See, e.g., Bullington v. Missouri, 451 U.S. 430, 445 (1981); United States v. DiFrancesco, 449 U.S. 117, 127-28 (1980); United States v. Scott, 437 U.S. 82, 87, 95, reh'g denied, 439 U.S. 883 (1978); United States v. Wilson, 420 U.S. 332, 343 (1975). However, the Court is not necessarily taking a functional approach merely because it is citing Green. See, e.g., Morris v. Matthews, 475 U.S. 237, 247, reh'g denied, 475 U.S. 1132 (1986), in which the Court invoked Green as a reason for not granting a new trial when the defendant wanted a new trial. The Court's statement in Green, though, was obviously concerned with protecting an unwilling defendant from the hazards of a new trial. Note, Morris v. Matthews: A ConstitutionalSalve for Double Jeopardy,Violations,^^38 MERcER^ L.^ REv.^ 715,^730 (1987).
- Findlater, supra note 39, at 713.
- Westen & Drubel, supra note 3, at 84. See also Crist v. Bretz, 437 U.S. 28, 33 (1978).
- Green v. United States, 355 U.S. 184, 187 (1957).
- Comment, Double Jeopardyand Appeal of Dismissals:A Before-and-After Approach, 69 CALiF. L. REv. 863, 865 (1981).
- Green v. United States, 355 U.S. 184, 187 (1957). 50. Benton v. Maryland, 395 U.S. 784, 810 (1969) (Harlan, J., dissenting).
- United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion).
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notice that his conduct is criminal. 65 Westen's third interest is identical to^ the Supreme Court's finality interest.^66 Judge Monroe McKay suggested another possible function^ of^ the^ double jeopardy clause. McKay stated that under a^ common^ law^ system^ "that^ prescribed [sic] few and distinct crimes ...^ [and]^ that applied^ jury^ rules virtually^ eliminating mistrials, the threat of multiple prosecution and punishment arose most visibly in the repetition of a^ prosecution following^ acquittal^ or^ conviction.'^67 However,^ given^ the present American system of overlapping crimes, less formal indictments, and mistrials, 68 McKay felt that the modern double jeopardy clause should serve as^ a^ limit on excessive prosecutorial discretion in charging persons with crimes,^ because prosecutorial discretion can^ become^ a^ means^ of^ harassment^ or^ oppression.^
69
In sum, the Supreme Court and others have identified five possible^ functions^ of the double jeopardy clause: (1) protecting the defendant's finality^ interest;^ (2) preventing the state from "wearing down" an innocent defendant;^ (3)^ protecting^ the integrity of jury acquittals; (4) preventing judges from imposing punishments^ not authorized by the legislature; and (5) preventing excessive prosecutorial discretion.
IV. A FuNCrIONAL LOOK AT DOUBLE JEOPARDY ISSUES
I will illustrate my contention that the Supreme Court's historical approach has, in recent years,^ created^ results at^ odds^ with^ the^ double^ jeopardy^ clause's^ proper function by comparing a functional analysis to the^ Supreme^ Court's^ treatment^ of specific double^ jeopardy^ issues.^ The^ comparison will focus^ on^ the^ following^ three issues: (1) the extent to which the double jeopardy clause protects^ a^ person^ from multiple punishment in one proceeding; (2) the effect of acquittals^ upon^ the state's ability to prosecute; and (3) the possibility^ that^ the^ clause protects^ a^ convicted defendant from resentencing for the same offense.
A. The Extent of Multiple Punishment Protection
The issue of multiple punishment^ arises^ after^ a^ defendant^ has^ been^ convicted of a crime. Multiple punishment occurs when a court gives^ the^ convicted defendant two sentences for^ the same^ conduct.^ The^ multiple punishment^ issue^ can^ occur^ after the defendant has been convicted in multiple trials,^ but^ the multiple punishment
- See id. at 1027-30. Westen links the "clearly authorized" requirement to void-for-vagueness and strict construction doctrines, both of which, along with the prohibition of ex post facto laws, are based at^ least^ in^ part^ on concepts of notice or^ "fair warning."^ See^ Weaver^ v.^ Graham,^ 450 U.S.^ 24,^ 28-29^ (1981)^ (ex^ post^ facto laws);^ United States v. Bass, 404 U.S. 336, 348 (1971) (strictconstruction); Lanzetta v. New Jersey,^306 U.S.^ 451,^^453 (1939) (void-for-vagueness). See also 1 W. LAFAVE & A. Scorr,^ Suas-rmmwE^ CP.ImurAL^ LAW^ 2.2(d), 2.3(b),^ 2.4(a)^ (1986). Westen, however, rejects the notice rationale in favor of^ a separation^ of^ powers explanation,^ see^ Westen,^ supra^ note 60, at 1028 n.83, which can garner some support from the Court's language in^ Whalen^ v.^ United^ States,^445 U.S.^ 684, 689 (1980) (the double jeopardy clause is "in this respect simply one aspect" of the doctrine of separation of powers). This rationale would only justify protection of this interest at the federal level because "the^ doctrine^ of^ separation^ of powers.., is not mandatory on the States." Id. at 689 n.4. For^ a^ more^ thorough^ discussion^ of^ these^ issues,^ see^ Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 VA. L. REv. 189 (1985).
- Westen, supra note 60, at 1033. 67. McKay, supra note 2, at 15. 68. Id.
- Id. at 19.
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issue is then subsumed in the multiple prosecution issue. 70 The multiple punishment issue, thus, is limited to whether a court may constitutionally impose legislatively authorized cumulative sentences in one proceeding. Although the Court had repeatedly said that the double jeopardy clause protects a defendant from multiple punishment,^71 the Court did not explicitly state whether a legislature may authorize cumulative sentences^ for^ the same^ conduct^ in^ one^ proceeding^ until^ recently.^
72 In Brown v. Ohio,^73 the Court seemed to recognize an absolute constitutional limitation on a state's ability to impose multiple punishment for the same conduct. The defendant in Brown had been sentenced under two different statutes, 74 but the Court, relying on Blockburger v. UnitedStates,^75 noted that two statutes do not have to proscribe exactly the same conduct for the conduct to be considered the "same offense" for double jeopardy purposes. Blockburger had held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not.' '76 In Blockburger itself, the defendant had been convicted and sentenced for violating two statutes through one sale of narcotics. The Court found that, under its test, the two statutes did not proscribe the same offense. One statute required proof that the defendant had not sold
- See infra text accompanying note 131. 71. The Court included multiple punishment in what has proved to be its "favorite" definition of the clause's scope. Westen, supra note 60, at 1062. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (clause protects a person from (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishment for the same offense). See also Ohio v. Johnson, 467 U.S. 493, 498, reh'g denied, 468 U.S. 1224 (1984); United States v. DiFrancesco, 449 U.S. 117, 129 (1980); Brown v. Ohio, 432 U.S. 161, 165 (1977); United States v. Wilson, 420 U.S. 332, 343 (1975). The Court apparently lifted the definition from Comment, Twice in Jeopardy, 75 YALE L.J. 262, 265-66 (1965). See Westen, supra note 60, at 1062 n.211. Note that the double jeopardy clause only prohibits reprosecution for the "same offense," i.e., the same conduct. See Thomas, A Unified Theory of Multiple Punishment, 47 U. Prrr. L. REv. 1, 55 (1985). The usually textually ambiguous double jeopardy clause compels the "same offense" requirement. See supra text accompanying note 1. The same offense requirement masks two separate issues: (1) the definition of the proscribed unit of conduct in a statute and (2) the determination of whether two statutes proscribe the same conduct. Thomas, supra this note, at 5. See Sanabria v. United States, 437 U.S. 54, 69-70 & 70 n.24 (1978); Gore v. United States, 357 U.S. 386, 393-94, reh'g denied, 358 U.S. 858 (1958) (Warren, C.J., dissenting). This Comment only discusses the second issue. For cases illustrating the irst issue, see Ciucci v. Illinois, 356 U.S. 571, reh'g denied, 357 U.S. 924 (1958) (in which petitioner conceded that the state could charge him in four separate indictments for the murder of his wife and three children); Bell v. United States, 349 U.S. 81 (1955) (in which the Court held that the transportation of two women across a state line at one time for immoral purposes could support conviction on only one count of violating the Mann Act).
- Thomas, Multiple Punishmentsforthe Same Offense: The Analysis After Missouri v. Hunter, 62 NVASH. U.L.Q. 79, 90 (1984).
- 432 U.S. 161 (1977).
- Id. at 162-63.
- 284 U.S. 299 (1932); Brown v. Ohio, 432 U.S. 161, 164-66 (1977). 76. Blockburger v. United States, 284 U.S. 299, 304 (1932). See Harris v. Oklahoma, 433 U.S. 682, 682 (1977) (proof of felony murder in the course of armed robbery will necessarily prove the underlying felony). See also Illinois v. Vitale, 447 U.S. 410 (1980). In Vitale, the state initially found the respondent guilty of failure to reduce speed when driving a car. Id. at 412. The state later charged the respondent with involuntary manslaughter, which required proof that the defendant had operated the car recklessly. Id. at 413 n.4, 416-17. Before trial the respondent moved to dismiss. The Court, however, said dismissal was improper before the trial because, if the state chose to rely on reckless acts other than a failure to slow, the offenses would not be the same; id. at 419, just as in Harrisv. Oklahoma, the felony murder charge would not have been the same offense as the armed robbery charge if the state based the felony murder charge on a different felony, for example assault. If the state chose to prove reckless operation through failure to slow in Vitale, the defenses would have been the same. See Illinois v. Vitale, 447 U.S. 410, 420-21 (1980); Harris v. Oklahoma, 433 U.S. 682, 682 (1977).
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clause can support an argument that the clause protects a defendant from multiple punishment imposed in one proceeding. 87 Conversely, the fact that the pleas of autrefois acquit and autrefois convict were designed to protect a defendant from multiple trials supports the opposite conclusion. Any collateral protection from multiple punishment may have merely been a result of the nature of common law criminal procedure. Common law criminal indictments generally accused a defendant of only one felony. Generally, a felony described one course of conduct and could result in only one sentence. 88 Under this procedure, multiple punishment for the same conduct could not normally exist without multiple trials. 8 9^ Thus, the common law pleas may not have been concerned with multiple punishment imposed in one proceeding. 90 In sum, historical arguments could support differing conclusions. Although history does not fully support the Court's interpretation of the double jeopardy clause in Hunter, one might still be able to defend the Hunter decision on the grounds that the legislative authorization of multiple punishment in that case did not interfere with four of the clause's five possible functions. 9 ' The case did not implicate the interest in the lawful administration of prescribed sentences 92 because the Missouri legislature clearly intended to allow the imposition of cumulative sentences. 93 The finality interest, the interest in preventing the government from "wearing down" the (^) defendant, and the interest (^) in jury acquittals were (^) also irrelevant because the sentencing occurred as part of one proceeding. The remaining of the five interests is in preventing harassment through the prosecutor's option to bring multiple charges. Before discussing the impact of the fifth interest, it should be noted that one commentator has suggested a sixth interest in this area, arguing that "the legislature's right to define punishment should be restricted under the double jeopardy clause by the doctrine of proportionality." 94 However, constitutional provisions other than the double jeopardy clause may protect these interests. The Hunter Court was careful to note that it only addressed the issue of cumulative punishment as it related to the double^ jeopardy^ clause.^95 Classifying an interest under a particular constitutional provision seems unim- portant if everyone agrees that some part of the constitution protects the interest. The
- Cantrell, supra note 25, at 770; Thomas, supra note 71, at 3 n.3; Comment, Twice in Jeopardy, supra note 71, at 265 n.12, 266 n.13.
- See Ashe v. Swenson, 397 U.S. 436, 445 n. 10 (1970). Professor Thomas notes that the only common law theft crime was larceny and that, in contrast some states now have as many as sixty theft crimes. Thomas, supra note 25, at
89. McKay, supra note 2, at 13-14. See also Comment, Twice in Jeopardy,supra note 71, at 266 n.13. Cf. Note, Consecutive Sentences in Single Prosecutions:JudicialMultiplication of Statutory Penalties, 67 YALE L.J. 916, 919 n. 17 (1958) which says that "[m]ultiple count indictments were not unusual at common law" and that "consecutive sentencing was possible....Nevertheless, pleas ofautrefoisacquit or autrefois convict apparently were considered (^) improper unless a former trial and verdict were shown." 90. SIGt.M, supra note 28, at 15; Note, Consecutive Sentences, supra note 89, at 918-20. 91. See supra text accompanying notes 42-69. 92. See supra text accompanying notes 63-65. 93. The armed criminal action statute said that "[t]he punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for a crime committed, by, with, or through the use, assistance, or aid of a dangerous or deadly weapon." Mo. REv. STAT. 571.015(1) (1978).
- Cantrell, supra note 25, at 772.
- Missouri v. Hunter, 459 U.S. 359, 368 n.5 (1983).
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Court's refusal to designate the protection of a^ particular^ interest^ as^ a^ function^ of^ the double jeopardy clause would be a problem only if^ protection^ of^ that^ interest were solely a function of the double jeopardy clause. Protection of the hypothetical sixth double jeopardy interest does not present such a problem because the proportionality of sentences is guaranteed by the eighth amendment's "cruel and unusual punish- ment" clause. 96 Under the eighth amendment, a person is protected from "excessive punishments.' , The fifth interest, the possibility that multiple charging under overlapping statutes will become a tool of harassment for prosecutors, presents^ a^ tougher^ issue than proportionality for two reasons. First, the Court has not explicitly recognized that protection from multiple charging is protected by constitutional provisions other than the double jeopardy clause. Second, the Court has also explicitly stated in Ball v. United States^98 that "even where the Clause bars cumulative punishment for a group of offenses, 'the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution.' "99 The Court in^ Ball also noted that it had "long acknowledged the Government's broad discretion to conduct criminal prosecutions." 100 Nevertheless, the state's^ ability^ to^ bring multiple^ charges^ may enhance^ the possibility that an innocent defendant may be found guilty because of a jury compromise. "The very fact that a defendant has been arrested, charged, and brought to trial on several charges may suggest to the jury^ that^ he must^ be^ guilty^ of^ at^ least one of those crimes." 10 1^ Splitting the punishment for an offense among several statutes therefore "serves only^ to^ strengthen^ the^ prosecution's^ hand."^1 0 2 However, the problem of jury compromise would always arise^ in^ a^ case that involves both a lesser-included and greater offense. For example, in a case like Brown v. Ohio,1^0 3 in which a state charges a defendant with car theft, the judge would presumably instruct the jury that they could alternatively find the defendant guilty of the lesser-included offense of joyriding. 104 Thus, the possibility of a compromise
- Solem v. Helm, 463 U.S. 277, 284-86 (1983); Rummel v. Estelle, 445 U.S. 263, 271-72 (1980). See Note, FifthAmendment-Double Jeopardy: Legislative Intent Controls in Crimes and Punishments, 74 J. ClRz. L. & CRIMINoLOGY 1300, 1312-13 (1983).
- Solem v. Helm, 463 U.S. 277, 286 (1983). To determine whether a penalty is disproportionate, a court must look at objective criteria, such as "(i) the gravity of the offense and the harshness of the penalty; (ii)^ the sentences^ imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the same crime in other jurisdictions." Id. at 292. Under this test, "outside the^ context^ of^ capital^ punishment,^ successful^ challenges^ to the^ proportionality^ of particular sentences [will be] exceedingly rare." Id. at 289-90 (quoting Rummel v. Estelle, 445 U.S. 263, 271- (1980)). The four dissenters in Solem wished to limit proportionality review to "sentences of death or bizarre physically cruel punishments." Id. at 307 (Burger, C.J., dissenting). 98. 470 U.S. 856 (1985).
- Id. at 860 n.7 (quoting Ohio v. Johnson, 467 U.S. 493, 500 (1984)).
- Ball v. United States, 470 U.S. 856, 859 (1985). 101. Missouri v. Hunter, 459 U.S. 359, 372 (1983) (Marshall, J., dissenting), quoted in Ball v. United States, 470 U.S. 856, 867-68 (1985) (Stevens, J., concurring).
- Missouri v. Hunter, 459 U.S. 359, 373 (1983) (Marshall, J., dissenting).
- See supra text accompanying note 78. 104. See 3 W. LAFAVE & J. ISRAEL, CRNUNtAL PROCERE § 23.6(b), at 40 n.22 (1984) (discussing whether a judge commits reversible error by not instructing the jury on a lesser-included offense); FED. R. CraM. P. 3 1(c) ("The defendant may be found guilty of an offense necessarily included in the offense charged ....").
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also found that "[n]owhere in the legislative history is it stated that a big-time drug operator could be prosecuted and convicted for the separate predicate offenses as well as the CCE offense." 117 Therefore, the Court should have found that Congress did not authorize multiple punishments because of the result of the Blockburger test and the lack of explicit legislative intent. Nevertheless, the Court upheld the defendant's convictions because, after examining legislative history, the Court found that Congress intended to create "separate offenses." The Court seemed to be following the Ball Court's distinction between multiple charging and multiple punishment, and using the words "separate offenses" as a shorthand for multiple charging, which the Blockburger test does not affect. 118 However, the Court also gave the words "separate offenses" their literal meaning. The Court said that its examination of congressional intent revealed the existence of two separate offenses. When two offenses are truly separate, the Court does not need an explicit statement of^ intent^ to^ punish^ cumulatively.'^ 1 9^ "[Tihe presumption when Congress creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific^ issue^ does^ not^ establish ambiguity or rebut this presumption .... ,, 12 o The words "two distinct^ offenses"^ had previously meant offenses that did not overlap under the Blockburger test. In Garrett, however, the Court seemed to be saying that mere congressional intent to create separate offenses would, in fact, create separate offenses. Thus, the Court, for the first time, found it unnecessary to determine congressional intent to impose cumulative punishment for offenses deemed the same under the Blockburger test. The Court said a clear statement of intent to impose cumulative punishment was unnecessary "where Congress was not silent as to its intent to create separate offenses, notwithstanding Blockburger."^ 1 2^1 The Court cited Albernaz v. United States 22 as support for its rejection of a clear statement requirement.12 However, in Albernaz, the Court had found the two offenses in that case to be separate underthe Blockburger test. 124 The Albernaz Court then rejected any presumption of intent to separately punish offenses that are separate under the test. 12 The Garrett Court used language from Albernaz to justify deference to Congress even though the offenses in Garrett were the same under the test. The Court should return to its use of Blockburger as a means of defining separate offenses. The "dispositive question" should be whether Congress clearly intended to authorize cumulative punishment, 126 not whether it intended to create separate offenses. Otherwise, Congress could not only authorize multiple punishment for the
117. Id. at 784. 118. Id. at 782-84. See supra text accompanying notes 98-99. 119. Albernaz v. United States, 450 U.S. 333, 343-44 (1980).
- Garrett v. United States, 471 U.S. 773, 793, reh'g denied, 473 U.S. 927 (1985) (citing Albernaz v. United States, 450 U.S. 333, 341-42 (1980)).
- Id. at 794.
- 450 U.S. 333 (1981). 123. Garrett v. United States, 471 U.S. 773, 794,^ reh'g^ denied,^^473 U.S.^927 (1985).
- Albernaz v. United States, 450 U.S. 333, 339 (1981). 125. Id. at 343-44. 126. Id. at 344.
812 OHIO STATE LAW JOURNAL [Vol. 49:
same offense under two statutes but could authorize successive prosecutions as well, simply by emphatically stating that the statutes actually proscribe separate offenses.1 27 If Garrett were read literally, the double jeopardy clause would^ neither bar legislative interferences with a defendant's finality nor "wearing down"^ interest through multiple prosecutions for the same offense, since Congress could use its ability to define "same offense" to immunize prosecutions from double jeopardy challenges.^128 The Court should also retain the Blockburger test as a useful tool of statutory construction when legislative intent is unclear.^ It^ is^ logical^ to^ presume^ (although^ the presumption should be rebuttable by a clear statement)^ that a^ rational^ legislature "ordinarily does not intend to punish the same^ [conduct]^ under^ two^ different statutes."- In conclusion, the Court's failure to recognize the double jeopardy clause's functions in Garrett may allow a legislature to negate important double jeopardy protections.^130
- The Blockburger test is used in succesive prosecution cases as well as multiple punishment cases. Harris v. Oklahoma, 433 U.S. 682, 682 (1977) (per curiam); Brown v. Ohio, 432 U.S. 161, 166 (1977). If anything, the defendant in a successive prosecution case receives greater protection^ because^ more^ double^ jeopardy^ interests^ are^ implicated. Thomas, supra note^ 25,^ at^ 340-42.^ See^ also^ Brown^ v.Ohio,^432 U.S.^ at^166 n.6. Confusingly, Garrett involved a successive prosecution^ issue^ separate^ from^ the^ cumulative punishment^ issue.^ The cumulative punishment issue arose from the prosecution of the defendant in Florida for the CCE offense and for three predicate offenses arising out of his involvement in marijuana smuggling in the Gulf of Mexico. Garrett v. United States, 471 U.S. 773, 800-01, reh'g denied, 473 U.S. 927 (1985) (Stevens, J., dissenting). In contrast, the successive prosecution issue arose from the fact that the^ prosecution^ also^ based^ the^ CCE^ charge^ on evidence^ relating^ to^ the defendant's prior conviction for marijuana smuggling in Neah Bay, Washington. Id. at 801-02, 805 (Stevens, J., dissenting). The Court found that the multiple prosecutions did not violate the double jeopardy clause because of the idea, recognized in Brown, that the state does not have to prosecute a defendant for both offenses if the second offense is not complete at the time of the fIrst prosecution. Id. at 787-89. See Brown v. Ohio, 432 U.S. 161, 169 n.7 (1977); Thomas, supra note 25, at 368.
- Admittedly, the Court may not be able to use even the Blockburger test as a means to^ define offenses independent of legislative opinion. The Blockburger test focuses on the elements of an offense, yet the Court tends to defer to state legislatures' definitions of the elements of offenses. See^ Martin^ v.^ Ohio,^107 S.^ Ct.^ 1098,^ 1103,^ reh'g^ denied, 107 S. Ct. 913 (1987); Patterson v. New York, 432 U.S. 197, 201, 210 (1977).^ But^ cf.^ Patterson,^ 432 U.S.^ 197,^210 (1977) ("there are obviously constitutional limits beyond which the States may not go in this regard"); Mullaney v. Wilbur, 421 U.S. 684, 699 (1975): If Winship [In re Winship, 397 U.S. 358 (1970), which required proof "beyond a reasonable doubt of every fact necessary to constitute the crime with which [a defendant] is charged" for a conviction, (id. at 364.)] were limited to^ those^ facts^ that^ constitute a crime^ as^ defined by^ state^ law, a State^ could^ undermine^ many^ of^ the interests that decision sought to protect .... It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.
- Ball v. United States,^470 U.S.^ 856,^861 (1985).
- While I^ think^ my^ reading^ of^ the^ implications^ of^ Garrett is a^ fair^ one,^ Garrett also^ includes language upon^ which a future Court could focus in order to limit, rather than expand, its holding. The Court noted that even though Congress did not explicitly state an intention to punish cumulatively, "such a statement would have merely stated the obvious," given the harsh tone of the congressional debates. Garrett v. United States, 471 U.S. 773, 784-85, reh'g denied, 473 U.S. 927 (1985). The Court could, if so inclined, limit Garrett to a holding that a clear statement of intent to^ punish cumulatively is not necessary if Congress clearly expresses an intent to treat offenders harshly and dismiss the other language in the case as dicta. Cf. United States v. Grayson, 795 F.2d 278, 282 (3d. Cir. 1986), cert. denied sub nom. Robinson v. United States, 107 S. Ct. 927 (1987): [Tihe Blockburger rule^ is^ not^ controlling^ when^ the legislative^ intent^ is^ clear^ from^ the face^ of^ the^ statute^ or^ the legislative history.... The language^ and^ legislative^ history^ of^ [the^ Racketeering^ Influenced and^ Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (1982 & Supp. 1984)] indicates little doubt that Congress, in enacting RICO, sought to allow the separate prosecution and punishment of predicate offenses and a subsequent RICO offense. But cf. United States v. Boldin, 772 F.2d^ 719,^729 (11th^ Cir.^ 1985)^ (Congressional^ silence^ justifies^ cumulative
OHIO STATE LAW JOURNAL
money than will an aborted one." 139 For example, a mistrial due to a hung jury occurs at the same stage of a trial as one ending in a verdict. Certainly, the state should not be allowed to appeal if the first trial ended in a final verdict and was free of legal errors. The state's prosecutorial interest is clearly satisfied even if a trier of fact finds the defendant not guilty, since the prosecutor has had "one full and fair opportunity to present his evidence to an impartial jury."' 140 However, the state's interest in "one full and fair proceeding" may not be satisfied if, for example, an acquittal is the result of a trial court's erroneous exclusion of crucial evidence. The state's interest in a full and fair opportunity to convict might include a right to appeal an acquittal based upon a legal error, or at least would require a court to balance the^ conflicting^ interests^ of^ the state^ and defendant.^1 4 1 Nevertheless, the values underlying the double jeopardy clause justify the distinction. First, the mere "availability of post-acquittal review" of an acquittal would "condemn^ all^ [acquitted]^ defendants to^ a^ continuing^ state^ of^ anxiety.^ ' 14^2 Consequently, the choice of a balancing test or an absolute prohibition results in either the state or the entire class of acquitted defendants (most of whom are undoubtedly not guilty beyond a reasonable doubt) "paying" for a trial judge's legal errors. The choice should be determined by society's "fundamental value determi- nation... that it is far worse to convict an innocent man than to let a guilty man go free." 143 The risk of arbitrary decision-making should fall on the state. 144 Therefore, a court need not balance the interests of the state and defendant in retrial if the first trial ended in an acquittal: "[i]f the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be
unfair."^145
Professor Westen's jury nullification interest, the third possible function of the double jeopardy clause, would support the absoluteness of jury acquittals, but not judge acquittals. 1 4 6^ Jury nullification is a controversial subject' 47 because a jury can nullify not only out of leniency but also out of less benign motives; 148 however, the
- Comment, Twice in Jeopardy, supra note 71, at 288 n.125.
- Arizona v. Washington, 434 U.S. 497, 505 (1978). Principles of resjudicata and collateral estoppel will apply to a second trial if the prosecution cannot obtain a reversal of the first trial's result. See Ashe v. Swenson, 397 U.S. 436, 443-44 (1970); United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916).
- See Cooper, Government Appeals in CriminalCases: The 1978 Decisions, 81 F.R.D. 539, 548 (1979).
- Findlater, supra note 39, at 728 n. 123 ("Few, if any, trials are totally error-free. Most of the acquitted could, without the prosecutor subjecting himself to charges of bad faith, be put to a substantial prolongation of their or- deal ....").
- In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring), cited in Patterson v. New York, 432 U.S. 197, 208 (1977) (referring to the state's burden of proving every element of a crime beyond a reasonable doubt).
- Gori v. United States, 367 U.S. 364, 373, reh'g denied, 368 U.S. 870 (1961) (Douglas, J., dissenting). The risk that the state bears may be relatively insignificant. If a trial court's erroneous exclusion of evidence would result in an acquittal, see supra text accompanying note 141, the state may be able to obtain immediate, pre-acquittal review of the ruling. See New York v. Quarles, 467 U.S. 649, 651 n.1 (1984); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 481 (1975).
- Arizona v. Washington, 434 U.S. 497, 503 (1978).
- See supra text accompanying notes 61-62.
- See United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir 1972) (court opposed to informing jury that it can disregard the law); Scheflin & Van Dyke, Jury Nullification: The Contours of a Controversy, 43 LAw & Comtp. PROBs 51, 85-110 (Autumn 1980); Should Jurors be told they can Refuse to Enforce The Law?, 72 A.B.A. J. 36 (Mar. 1,1986) [hereinafter Jurors].
- See Jurors, supra note 147, at 38 (statement by Professor Burke Marshall that jury nullification's "main use
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validity of the absolute double jeopardy bar to reprosecution after jury acquittals does not depend upon a resolution of the controversy. Even without jury nullification, the fact that the state's prosecutorial interest is satisfied by a determination of guilt or innocence prevents a court from reviewing any acquittal. The jury has a de facto power to nullify because the double jeopardy clause prevents anyone from stopping it. 149 In sum, the Court's approach seems consistent with the values underlying the clause, but the correctness of^ the^ Court's^ interpretation^ is^ probably^ fortuitous.^150
2. The Defendant's Protectionfrom RetrialAfter Dismissal or Declarationof a Mistrial A trial (^) may end before acquittal in two ways: (1) through declaration of a mistrial or (2) (^) through dismissal. 15 According to the Court, the double jeopardy consequences of a declaration of mistrial depend on whether the declaration occurred (1) at the request or with the consent of the defendant; (2) at the request of the prosecutor; or (3) upon a sua sponte motion by the judge. In the first situation, the clause does not bar reprosecution, with one narrow exception. 152 In contrast, the clause bars a mistrial declared at the request of a prosecutor unless the prosecutor shows that the judge ended the first trial only out of "manifest necessity. ' 1 553 The "prototypical" (^) example of manifest (^) necessity to end (^) a trial is a hung jury. (^) 154 A sua sponte declaration of a mistrial is apparently also barred unless "manifest necessity" exists for discharging the jury.1^55 The Court seems to take a parallel course in the context of dismissals. In United States v. Scott,1^56 the Court found that a dismissal at the defendant's request was the functional equivalent of a mistrial declared at the defendant's request.^57 The Court's approach (^) in this area is not compelled by history. The Court might
in this century probably has been to protect whites from the consequences of their unlawful, often violent, racial oppression of blacks").
- See id. at 36 (statement by Professor Marshall that "what makes [the nullification] power effective" is the double jeopardy clause). The Court's occasional references to jury nullification are consistent with this viewpoint. The Court has stated that "[t]he absence of these remedial procedures [directed verdict, etc.] in criminal cases permits juries to acquit out of compassion... or because of 'their assumption of a power which they had no right to exercise, but to which they are disposed through lenity."' Standefer v. United States, 447 U.S. 10, 22 (1980) (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (emphasis added). The Court's cryptic comment suggests that jury nullification is merely "the logical corollary of the rule that there can be no appeal from a judgment of acquittal." Jackson v. Virginia, 443 U.S. 307, 317 n.10, reh'g denied, 440 U.S. 890 (1979). 150. See infra text accompanying notes 166-96. 151. United States v. Scott, 437 U.S. 82, 92 (1978). 152. Oregon v. Kennedy, 456 U.S. 667, 672 (1982). See infra text accompanying notes 167-69. 153. (^) Arizona v. Washington, 434 U.S. 497, 508-09 (1978) (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)).
- Oregon v. Kennedy, 456 U.S. 667, 672 (1982). "Manifest necessity" can exist even if prosecutorial error causes the retrial. See Illinois v. Somerville, 410 U.S. (^) 458, 459-60, 468-69 (1973) (defective indictment), aff'd, Crist v. Bretz, 437 U.S. 28 (1978). 155. See United States v. Join, 400 U.S. 470, 482-87 (1970) (plurality opinion) (judge must consider alternatives to discharging the jury). But see Gori v. United States, 367 U.S. 364, 365, (^) 367-70, reh'g denied, 368 U.S. 870 (1961) (no abuse of judge's discretion if the judge is seeking to act in the defendant's best interest). 156. 437 U.S. 82 (1977). 157. Id. at 94.
19881 SUPREME COURT & THE DOUBLE JEOPARDY CLAUSE 817
effect. However, the Kennedy Court held that a prosecutor's conduct would not bar retrial unless^ "intended^ to^ provoke^ the^ defendant^ into^ moving^ for^ a^ mistrial."^
169
The Court's standard does not adequately protect double jeopardy interests. The Court correctly noted that the defendant obviously has little real^ choice^ to^ continue^ a trial when the prosecution is^ intent^ on^ forcing the defendant^ to^ declare^ a^ mistrial.^170 However, other forms of harassment or overreaching can also leave the defendant with little choice. For example, the prosecution may be interested solely in subjecting the defendant to the harassment of^ trial^ or^ may be intent^ on^ ensuring^ a^ conviction^ (but not a mistrial) through unfairly prejudicial conduct. 171 Also, as a practical matter, "[iut is almost inconceivable that a defendant could prove that the prosecutor's deliberate misconduct was motivated by an intent to provoke a mistrial instead of an attempt simply to^ prejudice^ the^ defendant."'^172 Instead of focusing on the functions of the double jeopardy clause, the Kennedy Court applied the intent standard as it generally applies in cases involving prosecu- torial misconduct, 173 declaring that an "overreaching" standard would be too amorphous to apply. 174 However, Professor Steven Reiss^ has^ suggested^ that^ a non-intent standard based upon "plain error" would be concrete enough to prevent a "windfall" to the defendant from "prosecutorial mistakes of a strategic or tactical nature. ' 17 5^ A plain error standard is also logically appealing because plain^ errors^ in the evidentiary context do not have to be raised by the defendant.1 76 The error^ is^ of such magnitude that the defendant's failure to preserve an objection was obviously not a strategic choice.^ Similarly,^ a^ court^ should^ not^ treat^ a^ defendant's^ mistrial request provoked by plain^ errors^ in^ the^ conduct^ of^ a^ trial^ as^ a^ typical^ request^ for^ a mistrial, because in the former case the^ defendant will^ also^ have had little^ choice.^ Use of a plain error standard would safeguard the defendant's double jeopardy interests better than the Court's "intent" standard. The facts of the second case, Richardson v. United States, 177 implicated several double jeopardy doctrines. In Richardson, ajury acquitted the defendant of one count of distributing a controlled substance but could not come to a verdict on the other two counts in the indictment. Because of the jury's inability to agree on a verdict, the trial court declared a mistrial on the two remaining counts and scheduled a retrial.1^78 The defendant moved for a directed acquittal based on the legal insufficiency of the government's evidence, but^ the^ trial^ court denied^ the^ motion.1^79 The Court initially found that it had jurisdiction to hear the defendant's appeal of the denial of his motion despite the final judgment requirement of 28 U.S.C.
169. Oregon v. Kennedy, 456 U.S. 667, 679 (1982). 170. Id. at 673; Reiss, ProsecutorialIntent in Constitutional Criminal Procedure, 135 U. PA. L. REv. 1365, 1424-25 (1987). 171. Oregon v. Kennedy, 456 U.S. 667, 689 (1982) (Stevens, J., concurring).
- Id. at 688 (Stevens, J., concurring). 173. See generally Reiss, supra note 170, at 1368-1429.
- Oregon v. Kennedy, 456 U.S. 667, 674 (1982). 175. Reiss, supra note 170, at 1472-73.
- See Fe R. Evm. 103(d); FED. R. Cmais. P. 52(b).
- 468 U.S. 317 (1984). 178. Id. at 318-19.
- Id. at 319.
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§ 1291, relying on Abney v. United States. 180 The Abney Court had held that a ''colorable"181 (^) double (^) jeopardy claim could (^) be an appealable collateral (^) order even in the absence of a final judgment because, without immediate review, the double jeopardy claim that the state could not retry the defendant might be irretrievably lost. 182 The Court then turned to the merits of the defendant's claim. The defendant claimed that Burks v. United States t 83^ required immediate appellate review of his motion for acquittal. Burks had held that an appellate reversal of a conviction for legal insufficiency of the evidence was the equivalent of an acquittal, and, therefore, barred retrial.^1 8 4 The Court distinguished Burks on the ground that the reversal in Burks occurred after a final judgment. 185 From a functional standpoint, this does not seem to be a valid distinction. Even though the defendant has not actually been acquitted, retrial of a defendant who is (^) entitled to an acquittal at the trial court level will not serve a valid state prosecutorial interest. "When the prosecution has failed to present constitutionally sufficient evidence, it cannot complain of unfairness in being denied a second chance, and the interests in finality, shared by the defendant and society, strongly outweigh the reasons for a retrial. '^186 In Richardson, retrial could have subjected the defendant to further delay, expense, anxiety, and embarrassment for no valid state reason. The Court also rejected the defendant's double jeopardy claim because a hung jury is not "the equivalent of an acquittal." The judge's declaration of a mistrial was not "an event which terminated jeopardy." 187 The Court cited a long line of cases that had allowed retrial after a hung jury to buttress its contention that a hung jury does not terminate the original jeopardy. 188 In short, the Court justified retrial "by pretending that it was not really a new trial at all but was instead simply a 'continuation' (^) of the (^) original proceeding." 189 The hung jury cases, however, were "quite beside the point." 190 The defendant objected to the second trial notbecause the first trial ended in a hung jury but because
- 431 U.S. 651 (1977); Richardson v. United States, 468 U.S. 317, 319 (1984).
- United States v. MacDonald, 435 U.S. 850, 862 (1978) (interpreting Abney v. United States, 431 U.S. 651 (1977)).
- Abney v. United States, 431 U.S. 651, 662 (1977). See also Flanagan v. United States, 465 U.S. 259, 266 (1984).
- 437 U.S. 1 (1978).
- Id. at 10-11. See supra note 134. 185. Richardson v. United States, 468 U.S. 317, 320 (1984).
- Id. at 330 (Brennan, J., dissenting in part). The defendant's "wearing down" interest, however, would only be implicated if a court could not review the defendant's motion for judgment of acquittal after a final judgment in the second trial. The question then becomes whether a court can review a defendant's motion from the first trial after the second trial. For a discussion of this issue, see United States v. Richardson, 702 F.2d 1079, 1081-82 (D.C. Cir. 1983), rev'd on other grounds, 468 U.S. 317 (1984) (court can review); id. at 1092-94 (Scalia, J., dissenting) (court cannot review).
- Richardson v. United States, 468 U.S. 317, 325 (1984). 188. Id. at 323-25.
- Id. at 329 (Brennan, J., dissenting in part).
- Id. at 330 (Brennan, J., dissenting in part).
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