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SCOTUS holds that agreeing to severance of interrelated counts waives issue-preclusion bar to second trial

Currier v. Virginia, USSC No. 16-1348, 2018 WL 3073763, June 22, 2018, affirming State v. Currier, 779 S.E.2d 834 (Va. App. 2015), reasoning adopted by 798 S.E.2d 164 (Va. 2016); Scotusblog page (includes links to briefs and commentary)

A defendant who agrees to have overlapping charges considered in two separate trials cannot invoke the doctrine of issue preclusion adopted in Ashe v. Swenson, 397 U.S. 436 (1970), and argue that an acquittal in the first trial bars a second trial on the remaining charges.

Currier was charged with burglary, theft, and possession of a firearm by a felon for allegedly stealing a safe that contained cash and guns. Currier disputed he was involved in stealing the safe and challenged the credibility of the witnesses who said he was. To avoid tainting the jury with the knowledge Currier was a felon, prosecutors and Currier agreed to try the burglary and theft charges first, to be followed by a separate trial on the felon-in-possession charge. The jury at the first trial found him not guilty of theft and burglary. (Slip op. at 1-3).

Currier then moved to dismiss the felon-in-possession charge, invoking issue preclusion under Ashe, which held that where a jury’s acquittal necessarily decided an issue of ultimate fact in the defendant’s favor, the Double Jeopardy Clause bars the prosecution from trying to convince a different jury of that very same fact in a second trial. See Bravo- Fernandez v. United States, 137 S. Ct. 352, 359 (2016). Because the first jury decided he wasn’t involved in the theft of the safe containing the guns—which was the only basis for him to have possessed the guns—double jeopardy clause barred the state from trying to persuade a second jury that he had been involved in the theft. The trial judge allowed the prosecutors to try again, and so they did. The second trial was the charm, and Currier was convicted. (Slip op. at 3).

A bare majority of the Court holds Currier’s retrial didn’t violate the Double Jeopardy Clause. The Court pays at best lukewarm respect to Ashe, saying it “represented a significant innovation in our jurisprudence” that some have said “sits uneasily with this Court’s double jeopardy precedent and the Constitution’s original meaning.” (Slip op. at 4-5). On top of that, “we have emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial.” (Slip op. at 5). And on top of that “demanding” test, even assuming Currier’s second trial was the retrial of the “same” offense under Ashe, two differences between this case and Ashe make the latter inapplicable: Currier consented to the separate trial, and trying all three charges in one trial would have prevented any possible Ashe complaint Currier might have had:

How do these [two] features affect the double jeopardy calculus? A precedent points the way. In Jeffers v. United States, 432 U.S. 137 (1977), the defendant sought separate trials on each of the counts against him to reduce the possibility of prejudice. The court granted his request. After the jury convicted the defendant in the first trial of a lesser-included offense, he argued that the prosecution could not later try him for a greater offense. In any other circumstance the defendant likely would have had a good argument. Historically, courts have treated greater and lesser-included offenses as the same offense for double jeopardy purposes, so a conviction on one normally precludes a later trial on the other. Id., at 150–151 (plurality opinion); Brown v. Ohio, 432 U.S. 161, 168–169 (1977) (collecting authorities). But, Jeffers concluded, it’s different when the defendant consents to two trials where one could have done. If a single trial on multiple charges would suffice to avoid a double jeopardy complaint, “there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the … offenses tried separately and persuades the trial court to honor his election.” 432 U.S., at 152.

What was true in Jeffers, we hold, can be no less true here. If a defendant’s consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe. Nor does anything in Jeffers suggest that the outcome should be different if the first trial yielded an acquittal rather than a conviction when a defendant consents to severance. While we acknowledge that Ashe’s protections apply only to trials following acquittals, as a general rule, the Double Jeopardy Clause “‘protects against a second prosecution for the same offense after conviction’” as well as “‘against a second prosecution for the same offense after acquittal.’” Brown, supra, at 165. Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations.

Holding otherwise would introduce an unwarranted inconsistency not just with Jeffers but with other precedents too. In United States v. Dinitz, 424 U.S. 600 (1976), for example, this Court held that a defendant’s mistrial motion implicitly invited a second trial and was enough to foreclose any double jeopardy complaint about it. In reaching this holding, the Court expressly rejected “the contention that the permissibility of a retrial depends on a knowing, voluntary, and intelligent waiver” from the defendant. Id., at 609 n. 11. Instead, it explained, none of the “prosecutorial or judicial overreaching” forbidden by the Constitution can be found when a second trial follows thanks to the defendant’s motion. Id. at 607. In United States v. Scott, 437 U.S. 82 (1978), this Court likewise held that a defendant’s motion effectively invited a retrial of the same offense, and “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of [a] voluntary choice” like that. Id., at 96, 99; …. [T]hese precedents teach that consenting to two trials when one would have avoided a double jeopardy problem precludes any constitutional violation associated with holding a second trial. In these circumstances, our cases hold, the defendant wins a potential benefit and experiences none of the prosecutorial “oppression” the Double Jeopardy Clause exists to prevent. Nor, again, can we discern a good reason to treat Ashe double jeopardy complaints more favorably than traditional ones when a defendant consents to severance.

(Slip op. at 5-7).

While Currier argues he had no real choice but to seek two trials to avoid tainting the jury’s consideration of the burglary and larceny charges, “no one disputes that the Constitution permitted Virginia to try all three charges at once with appropriate cautionary instructions. So this simply isn’t a case where the defendant had to give up one constitutional right to secure another.” (Slip op. at 8). Instead, Currier faced a choice between two courses of action, each of which bore potential costs but promised possible benefits. “It might have been a hard choice. But litigants every day face difficult decisions. …. This Court has held repeatedly that difficult strategic choices like these are ‘not the same as no choice,’ … and the Constitution ‘does not … forbid requiring’ a litigant to make them,…” (Id.).

As the majority opinion recognizes (slip op. at 2), the approaches to severance vary considerably across states. Virginia has generous provisions for severance, taking a view sympathetic to Currier that trying all the charges together might be prejudicial. Other states, the Court notes, routinely refuse severance, or address the risk of prejudice  from the joinder of certain offenses with cautionary instructions or rules allowing for stipulations that keep the most prejudicial details from coming into evidence. (Id.). Wisconsin’s approach is to routinely deny severance and rely on cautionary instructions or stipulations (if they are sought), as evidenced by these recent decisions. That means multiple trials and the concomitant Ashe issue addressed in this case won’t come up very often here. But practitioners take note: If you have a case in which you are considering whether to seek severance, understand that doing so will bar a claim under Ashe should the first trial result in acquittal. (Not that acquittal isn’t a benefit itself, of course).

Two more points about the decision in Currier. First, the majority opinion (written by Gorsuch) has three sections. The first sets out the facts and the second contains the holding summarized above; these two sections are joined by a majority of five Justices. The third section is supported only by a plurality (Gorsuch, plus Roberts, Thomas, and Alito), and it’s a good thing, too. While the second section (as noted above) gives only lukewarm respect to Ashe, the third section would throw it in the dustbin of history. Citing various 18th and 19th century cases (some from the King’s Bench) and commentary from such antient sages as Blackstone and Matthew Hale and Joseph Story, the plurality says issue preclusion shouldn’t apply in criminal cases and double jeopardy analysis should simply ask whether two offenses have the same statutory elements, as dictated by Blockburger v. United States, 284 U.S. 299 (1932). (Slip op. at 8-16). So Ashe appears to be one retired Justice away from being a dead letter.

Second, there is a vigorous dissent (Ginsburg, joined by Breyer, Sotomayor, and Kagan) that emphasizes a core double jeopardy protection virtually ignored by the majority/plurality opinion—the protection afforded the finality of an acquittal, which exists independent of the protection against multiple trials and is central to the issue-preclusion doctrine. The protection of finality makes the majority’s reliance on Jeffers, Dinitz, and Scott misplaced because none of those cases involved the finality of an acquittal. Moreover, the dissent notes, prosecutors today have an unprecedented multitude of charges that can be brought based on a single criminal incident, and issue preclusion remains an important double jeopardy protection against multiple trials that would otherwise be permissible under the Blockburger elements-only test. (Dissent at 1-15).

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