Civil and Human Rights

Supreme’s Double Jeopardy ruling draws mixed reaction

WASHINGTON – The U.S. Supreme Court’s recent ruling that an informal jury poll did not rise to the level of an acquittal for double jeopardy purposes didn’t just draw mixed reactions from the justices themselves.

Lawyers are also falling on both sides of the fence, with some expressing fear that the Court rolled back defendants’ constitutional rights and others saying the decision comports with current courthouse practices and logic.


“I think this ruling has got to be fairly discouraging to defense attorneys, because this case reflects the problem that arises if the Double Jeopardy Clause is not used to prevent the prosecution from being rescued from a weak case,” said Elizabeth B. Wydra, chief counsel for the Washington-based Constitutional Accountability Center.


But others say that allowing implied acquittals would create a system that is more confusing and unworkable for all parties involved.


“It gets very convoluted and difficult to navigate these cases when a judge takes a partial verdict on the lesser-included offenses,” said Randy Chapman, a criminal defense attorney in Chelsea, Mass….


…Wydra said she was disappointed that at least two more justices were not swayed by Sotomayor’s reasoning.


“I think she did a great job in explaining the threat to an individual’s liberty from allowing a state to retry someone on charges that they have been found not guilty on,” Wydra said. “It is as real now as it was when the founders wrote the Double Jeopardy Clause in the Constitution.”


The case also creates a more practical problem for defense attorneys, Wydra said.


“Here, you had a case where the defense did a fantastic job of showing the inadequacy of the state’s case,” Wydra said. “Now the prosecution has the benefit of a trial run to try to plug the holes in [its] case. And now that they have a second bite [at] the apple, the prosecutor will take advantage of the defense attorneys’ work in defending the case.”…


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