Entries tagged with “double jeopardy” from Harmfulerror

Yesterday, the 9th Circuit, in a 2-1 opinion in Harrison v. Gillespie, found that a defendant's right against double jeopardy would be violated if the State were allowed to seek the death penalty in a second trial.

The jury returned a verdict of guilt on the charge of first-degree murder.  Following the penalty trial, the jury reported that it was deadlocked, and two juror notes indicated that the deadlock was between life with parole, and life without. Harrison's counsel asked to poll the jurors on whether there was unanimous agreement that as to whether aggravated circumstances existed and whether they found that mitigating circumstances outweighed aggravators. The trial court denied the request, and declared a mistrial. The State of Nevada wants to seek the death penalty in a second penalty trial.  Harrison's counsel filed a petition for a writ of mandamus or prohibition with the Nevada Supreme Court, which was denied without analysis of the issue presented.  Harrison then filed a petition pursuant to 28 USC 2241 for a writ of habeas corpus in federal court.  It was summarily denied.  On appeal, the 9th Circuit (Judge Reinardt joined by Senior Judge Hug) granted relief and reversed the district court's denial of the petition. The panel held the trial court abused its discretion by declaring a mistrial without first granting petitioner's request to poll the jury to determine whether it had acquitted petitioner of the death penalty. The panel further held that, because no other alternative would adequately protect petitioner's rights under the Double Jeopardy Clause, the State could not seek and the court could not impose the death penalty at a sentencing retrial. Judge Silverman dissented, after finding that the federal constitution does not require a state trial judge to inquire into the unfinished deliberations of a discretionary matter before declaring a mistrial.

The Nevada Supreme Court issued three opinions today, including one interesting opinion and another opinion which results in the removal of a Family Court judge from the bench.

In Lueck v. Teuton, the Nevada Supreme Court concludes that Family Court Judge Robert Teuton's temporary term expired on the first Monday in January, 2009.  He was appointed by the governor to fill a vacancy in August, 2008.  The Court finds that the seat should have been placed on the November, 2008 ballot and rejected the argument that he is allowed to serve under the appointment until the next general election (November, 2010) in which strict compliance with all election deadlines could be met.  The Court also finds that Robert Lueck lacked standing to bring the challenge, but nonetheless addressed the merits of the issue presented under the Court's supervisory responsibilities over the judicial branch.  The Governor will now be asked to fill the vacant position.

In Glover v. District Court, the Court, in an en banc 4-2-1 decision, denies a petition for a writ of prohibition which sought to prohibit a second trial following a mistrial.  The majority (Justices Pickering, Gibbons, Parraguirre and Douglas) find that there was manifest necessity for a mistrial based upon defense counsel's action of referring to facts that were not in evidence.  Specifically, the State obtained a statement from the defendant after his arrest, but the State did not introduce the statement at trial.  Defense counsel referred to the statement during opening statements, cross-examination of a detective, and closing argument.  He argued that the jurors should ask themselves why the State would not let them see or hear what the defendant said to the police and, following the State's objection which had been sustained, that the tape would be devastating to the State's case.  The district court declined to issue a curative instruction and instead declared a mistrial.    The majority finds that defense counsel was wrong to mention the tape of the defendant's statement and that the district court acted within its discretion in granting the mistrial.

Although the State prevails in this case, there is language from the majority opinion that is useful to the defense bar.  For example, "prosecutor" can easily be substituted for "defense lawyer" in the following:  "For a defense lawyer to make statements to the jury that are not and cannot '"be supported by proof is, if it relates to significant elements of the case, professional misconduct . . . and fundamentally unfair.'"  Washington, 434 U.S. at 513 n.32 (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J. concurring)).  Such misconduct "unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal[ ] [and] create[s] a risk, . . . not present in the individual juror bias situation that the entire panel may be tainted.'  Id. at 512."  Additional favorable language is found throughout the opinion.  The opinion also addresses prior consistent statements and negative inferences based upon the failure to produce evidence.

Chief Justice Hardesty and Justice Saitta concurred in part and dissented in part.  They concluded that the district court abused its discretion in granting the mistrial as a curative instruction would have been a sufficient remedy.  Justice Cherry dissented.  He concluded that the defense attorney did not commit misconduct.

There is a statement in the majority opinion which is incorrect.  In footnote 5, the Court states "[T]his court has never differentiated between the state and federal constitutional protection against double jeopardy, and the parties do not suggest a basis for doing so in this case."  In Wilson v. State, 170 P.3d 975 (2007), the Nevada Supreme Court refused to follow the analysis adopted by the US Supreme Court, in United States v. DiFrancesco, 449 U.S. 117, 138-39 (1980), for the federal constitutional guarantee as it concerns an increase of a sentence following remand for a new sentencing hearing.  It found that Article 1, Section 8(1) of the Nevada Constitution provides a more protections than those afforded under the federal constitution and concluded that a defendant's sentence may not be increased on remand.  

Finally, in Ogawa v. Ogawa, the Court addresses an international child custody dispute and other divorce issues. 

 

 

 

 

Yeager v. United States - A jury's acquittal of an Enron executive of securities and wire fraud charges may have erected a double jeopardy bar to his retrial on factually related insider-trading and money-laundering charges on which the jury deadlocked.  Prosecutors may not try an individual again on the "hung" counts if they had a common element with those on which the jury acquitted. 6-3 decision authored by Justice Stevens.

District Attorney's Office for Third Judicial District v. Osborne - A state prisoner has no freestanding constitutional right under the due process clause to obtain post-conviction access to forensic evidence in order to subject it to DNA testing to establish his innocence following resolution of trial and habeas proceedings. Access to DNA evidence following a final conviction is a legislative matter. 5-4 decision authored by Justice Roberts with concurrences by Alito, Kennedy and Thomas.

Gross v. FBL Financial Services Inc., - The burden of persuasion required to establish employer liability under the Age Discrimination in Employment Act is the same in cases where the employer's motives in acting against the employee are allegedly mixed as in any other ADEA action involving allegations of disparate treatment. The burden does not shift to the employer in mixed motive cases to show that it would have taken the alleged adverse action regardless of the employee's age. A 5-4 decision authored by Justice Thomas.

Travelers Indemnity Co. v. Bailey.  The terms of an injunction precluding certain lawsuits against insurers of bankrupt Johns-Manville Corp., an asbestos manufacturer, included as part of the company's 1986 bankruptcy reorganization plan, bar state-law actions brought against Manville's insurer over a decade later. The finality of the bankruptcy court's orders after direct review "generally stands in the way of challenging the enforceability of the injunction."  A 7-2 decision authored by Justice Souter.

Polar Tankers Inc v. City of Valdez-Alaska - The Court finds invalid a tax imposed by the city of Valdez on cargo ships that used its port.  A 7-2 decision.

Nijhawan v. Holder - Clarifies findings that an immigration judge must make in order for a conviction of a crime to be used as the basis for deportation.  A 9-0 decision.

The Ninth Circuit published a decision this morning in Wilson v. Belleque.  The opinion is instructive to state court practitioners who want to make a pretrial challenge involving double jeopardy to the federal courts following denial of a motion to dismiss in state court.  

On Friday the United States Supreme Court granted certiorari in six cases, three of which involve criminal law related issues:

Bobby v. Bies:  Whether the holding of a state post-conviction hearing to determine the mental capacity of a capital defendant whose death sentence was affirmed before Atkins v. Virginia (2002), which barred the execution of mentally retarded defendants, violates the Double Jeopardy clause where the issue of mental capacity has already been addressed at trial and on direct appeal.

Safford United School District #1 v. Redding: Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing prescription strength ibuprofen on campus in violation of school policy.

Nijhawan v. Mukasey:  Whether the petitioner's conviction for mail, bank and wire fraud qualified as an aggravated felony under the immigration laws, the penalty for which is lifetime banishment from the country.

The other three cases are the following:

Forest Grove School District, Petitioner v. T. A.: Whether parents of a student who has never previously received special education services from a school district may be eligible under the Individuals with Disabilities Education Act for reimbursement of private school tuition.

Cuomo v. The Clearing House Ass'n, L.L.C.,:  Whether 12 USC § 484 and 12 CFR § 7.4000 prohibit measures taken by a state prosecutor to enforce state fair lending law against national banks by subjecting those entities to "visitorial powers."

U.S. ex rel. Eisenstein v. City of New York: Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act.

Scotusblog provides links to the lower court opinions, petitions, oppositions, replies and amicus briefs.  Briefing will be expedited so the cases may be ruled upon in this term.

The United States Supreme Court granted certiorari in five cases today:

Caperton v. AT Massey Coal Company, Inc:  Whether a judge's failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates the Due Process righs of the other party.

Yeager v. United States:  Whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts for which the jury failed to reach a verdict.

Abuelhawa v. United States - Whether a person who uses a cell phone to buy drugs solely for personal use, which is a misdemeanor, can be charged with the separate crime of using a phone to facilitate the sale of drugs, which is a felony.

Citizens United v. Federal Election Commission - Whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-damand to cable subscribers.

Dean v. United States: Whether, under 18 USC 924(c)(1)(A)(iii), the mere discharge of a firearm during a crime of violence or drug trafficking, even if accidental, is subject to a 10-year sentencing enhancement.

Scotusblog provides links to all available briefs and lower court opinions.