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SCOTUS will decide whether agreeing to severance means giving up issue preclusion

Currier v. Virginia, USSC No. 16-1348, certiorari granted 10/16/17

Question presented:

Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

Lower court decision: State v. Currier, 779 S.E.2d 834 (Va. App. 2015), reasoning adopted by 292 Va. 737 (Va. 2016).

USSC Docket

Scotusblog page (including lines to petition for certiorari and response; briefs; and commentary)

The decision in this case will resolve an unusual but important double jeopardy issue that has split courts around the country. The issue involves the application of the doctrine of issue preclusion (or collateral estoppel) embodied in the Double Jeopardy Clause, per Ashe v. Swenson, 397 U.S. 436 (1970). That doctrine provides 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. Bravo- Fernandez v. United States, 137 S. Ct. 352, 359 (2016).

Currier was charged with burglary, theft, and possession of a firearm by a felon for allegedly stealing a safe that contained cash and guns. To avoid having the jury on the burglary and theft charges tainted by the knowledge that Currier had previously been convicted of a felony, prosecutors and Currier agreed to try those two charges first, followed by a separate trial on the felon-in-possession charge. The issue in the first trial was whether Currier was involved in stealing the safe. The jury found him not guilty of both charges.

When prosecutors proceeded with the felon-in-possession charge, Currier moved to dismiss, invoking issue preclusion under Ashe and arguing the double jeopardy clause barred the state from trying to persuade a second jury that he had been involved in the theft of the safe that contained the guns. After all, if Currier did not steal the safe, and thus the guns, he could not have possessed the guns. The trial judge allowed the prosecutors to try again, so they did, relying on the same basic theory as the first trial. The second time proved the charm: Currier was convicted and sentenced to prison.

Both the trial court and the Virginia appeals courts rejected Currier’s issue-preclusion argument by reasoning that, even if the first jury rejected the theory on which prosecutors relied in the second trial, the double jeopardy clause was not implicated because prosecutors had opted for two separate trials to protect Currier from the prejudice inherent in trying all the charges together, rather than because they were “overreaching.” But as the NACDL amicus brief (at 3) puts it, refusing to apply issue preclusion in cases like Currier’s put defendants to an unfair Hobson’s choice of sacrificing one important right in order to preserve another: “Currier faced the choice of enduring either (1) a single trial at which evidence of his prior felony conviction relevant to the felon-in-possession charge would unduly prejudice him with respect to the burglary and theft charges, or (2) sequential trials in which the prosecution at a second trial could re-litigate issues it lost at the first—exactly the type of ‘dry run’ the Double Jeopardy Clause aims to prevent. Ashe, 397 U.S. at 447.” Thus, consenting to severance shouldn’t be treated as a voluntary waiver of the double jeopardy bar. This is particularly true, Currier argues, now that “prosecutors [can] spin out a startlingly numerous series of offenses from a single alleged criminal transaction,” a power that makes the issue preclusion doctrine even more important to ensure that individuals who are acquitted cannot be forced to defend a second time against functionally the same allegations. Ashe, 397 U.S. at 445 n.10.

If the reasons for rejecting Currier’s arguments sound weak, consider this: the federal courts of appeal and state supreme courts are divided on the question presented in this case. (Wisconsin hasn’t apparently taken a side in this split, perhaps because of our illiberal attitude toward severing joined charges, as evidenced by these recent decisions.) The Supreme Court will now have the last word.

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