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When does having separate trials violate double jeopardy?


When does having separate trials violate double jeopardy?

On behalf of Patrick T. McNally, Attorney at Law | 
October 19, 2017

Sometimes, a single defendant is subjected to two separate trials. This is often done in an effort to protect the defendant’s right to a fair trial when something in the first trial would create undue prejudice among the jury in the second trial, or vice versa. But what if part of the second trial depends on facts being decided in the first trial?

A Virginia man says his acquittal in a first trial should have resulted in the state dropping the charges in the second. He was accused of participating in a break-in where a safe full of guns and money was stolen. Because he had a criminal record, the state also accused him of being a felon in possession of firearms. He was acquitted of the break-in; shouldn’t that mean he was not guilty of the unlawful possession charge?

Unfortunately, he was convicted of possessing the weapons in a separate trial. Did that give prosecutors “two bites at the apple” — two chances to try their case?

The Virginia Court of Appeals and the Virginia Supreme Court upheld his conviction. They claim that, since the prosecutors’ motive in separating the trial was to protect the defendant’s rights, they should not be precluded from benefitting from the situation.

The U.S. Supreme Court has agreed to hear the case.

Lower courts: Prosecutors weren’t trying to get a second chance

Whether the man was guilty of being a felon in possession of guns was handled in a separate trial in order to protect his rights. It wouldn’t be fair for the jury determining his guilt regarding the break-in to know that he had a prior criminal record.

When the man was acquitted of the charges related to the break-in, he thought he had been exonerated. He asked the prosecutors to drop the felon in possession charge. They refused. He asked the second trial court to dismiss the charges and prevent prosecutors from having a second chance to convict him on the underlying break-in. The court declined, and he was convicted of possessing the weapons.

All of the Virginia courts agreed that the double jeopardy clause did not apply because the prosecutors were not trying to overreach by holding successive trials on the same subject.

The man’s appellate brief to the Supreme Court indicates that state courts and federal circuits are divided on whether this situation counts as double jeopardy. However, even while granting a hearing, the Supreme Court affirmed the man’s conviction, which does not look hopeful.

The double jeopardy clause was meant to prevent prosecutors from trying people for the same crimes over and over until they get a conviction. Do you think this situation should count as double jeopardy?

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