Twice Put In Jeopardy

Lawrence Walls is doing 11 years for aggravated robbery, robbery, aggravated burglary, and a three-year firearm specification. Not a matter of much interest to anyone except Lawrence Walls and maybe some family or friends.* What's interesting about Walls is the circumstance of his conviction: He was tried one and a half times.

First came the half.

Trial began on Monday. They picked a jury, had opening statements, the state presented its case and then rested. By then it was time to quit for the day. The jury was sent home. The lawyers went off to prepare for the next day when Walls would present his alibi, the jury would hear closing arguments, the judge would give his charge and the jury would at least begin deliberating. And that's how things began on Tuesday.

Robert Burns, observing nature, recognized that you never really know what will happen and that expectation and even plan is too often beyond our grasp.

But, Mousie, thou art no thy lane

In proving foresight may be vain:

The best laid schemes o' mice an' men

Gang aft a-gley,

An' lea'e us nought but grief an' pain,

For promised joy.

And so it came to pass. Tuesday morning, instead of finishing the trial, the judge sent the jurors home, and told them to call the court that evening for instructions. A couple of hours later, and over the objections of Walls, the judge declared a mistrial.

Tuesday, you see, was September 11, 2001. Who knew what would happen next?

Another trial, in the same courthouse, was also interrupted that morning. The judge overseeing that trial, too, sent the jury home Tuesday morning. Rather than a mistrial, though, he brought the jurors back a while later and finished the trial.

Ultimately, as I say, Walls was convicted. There was one issue raised in his appeal.

TRIAL COURT ERRED IN DECLARING A MISTRIAL SUA SPONTE

AND OVER THE OBJECTION OF THE DEFENDANT.

The idea was that, under the circumstances, a second trial would violate the protections of the double jeopardy clause of the Fifth Amendment. You know, the one that say that no person shall

for the same offence to be twice put in jeopardy of life or limb.

Seems simple enough. Once they start to try you, they don't get a do over. Like so much of what's in the Constitution, the Courts have determined that the double jeopardy clause doesn't really mean exactly what it seems to say. The Supreme Court laid it out in a capital case, United States v. Perez, back in 1824. Here, in its entirety, is Justice Story's opinion for the Court.

This cause comes up from the Circuit Court for the southern district of New-York, upon a certificate of division in the opinions of the Judges of that Court. The prisoner, Josef Perez, was put upon trial for a capital offence, and the jury, being unable to agree, were discharged by the Court from giving any verdict upon the indictment, without the consent of the prisoner, or of the Attorney for the United States. The prisoner's counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the Judges were divided. The question, therefore, arises, whether the discharge of the jury by the Court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offence. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment 580 until such trial can be had. We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American Courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. A certificate is to be directed to the Circuit Court, in conformity to this opinion.

That's it. The jury was hung. Perez could be tried again.

The key words are "manifest necessity" and "sound discretion." The key point is that the double jeopardy clause shouldn't be ignored lightly.

To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.

Except those words are followed by "But," and that upends the whole thing. It means, in essence, that courts should be very wary about declaring mistrials - especially when the defense objects - and they may do so only in extreme cases. Or they can do it whenever they want, and we'll just say, "close enough for government work."

One judge in Toledo didn't declare a mistrial and the case went forward. Another declared one and the court of appeals said it was an extreme situation and "manifest necessity" and really the judge had no choice and by golly, the judge didn't actually abuse his discretion. And so Lawrence Walls doesn't get the benefit of the protection against double jeopardy. He can be tried a second time.

All of that is old news. Perez is a case from 1824. Lawrence Walls has now done well over 8 years of his 11 year sentence. But as they say, what goes around comes around. And now the Supreme Court has to decide whether to put some teeth into Justice Story's imprecation.

To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.

The case is Renico v. Lett and it's attracted surprisingly little interest so far. Not a single amicus brief. The ACLU hasn't weighed in. Neither has the National Association of Criminal Defense Lawyers. Nor has the Court heard from dozens of state Attorneys General or from the Criminal Justice Legal Foundation or the prosecuting attorneys' associations. Like I say, little attention.

But it'll matter to Mr. Lett.

Here's the story.

In August 1996, in Detroit, Adesoji Latona was shot and killed. The next year, Reginald Lett was tried for the murder. After 11 hours of testimony over four days, the jury went off to deliberate. They were out a total of four hours during which they sent the court 7 notes. The first expressed a concern that they were being so loud other court matters were being disrupted. The last asked what would happen if they couldn't agree on a verdict.

Judges hate hung juries. Typically, when the jury says it can't agree, the judge sends them back and tells them to keep trying. Sometimes the judge reads them a special charge designed to coerce a verdict (we believe for the government, though the courts deny that). Judges keep seemingly deadlocked juries going for days. They deny them food. They threaten to keep them deliberating over holidays. Only when all that fails do they concede there can't be a verdict and that the jury is hung. Not this judge.

The judge brought the jury into the courtroom. Now, from the transcript.

THE COURT: I don’t want to know what your verdict might be, or how the split is, or any of that. Thank you. Okay? Are you going to reach a unanimous verdict, or not?

THE FOREPERSON: (No response)

THE COURT: Yes or no?

THE FOREPERSON: No, Judge

And the judge immediately declared a mistrial. Lett was tried again and convicted. The Michigan courts figured that there was that old manifest necessity for a mistrial. The federal courts disagreed. The trial judge just hadn't really made sure the jury was deadlocked. And since the judge hadn't, calling the mistrial was premature. The judge wasn't cautious. The case wasn't plain and obvious. No manifest necessity.

Lett goes home (after, of course, spending over a decade in prison, but hey, his sentence is 16-40 years). Or maybe he doesn't. Michigan asked the Supremes to weigh in, and they agreed.

So what's the answer? If I were Lett, I'd be worried at the prospect of seeing defeat snatched from the jaws of victory. He can lose on the merits. (Close enough for government work.) He can lose on technical grounds involving application of habeas corpus law (insufficient deference to Michigan courts, say, or no clearly controlling Supreme Court law). He can lose 5-4, and you've got to figure that 4 of the 9 started out sympathetic to Michigan or why would they have agreed to hear the case.

Prediction is risky, expectations ephemeral. Just ask the mouse who had his burrow disturbed by Bobby Burns.

But I'll offer this. The surest votes to uphold the idea that the Constitution doesn't come close to meaning what it says are the Justices who believe that the Constitution always means what it says. And the ones who think that the job of judging is easy. Balls and strikes. You don't even have to look at home plate. Just think about who's pitching.

We'll know in a couple of months.

Oral argument is in the morning.

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*But maybe not. One of the dirty secrets of our society is that so many of those who turn to crime were, themselves, abandoned by family and are without friends. Another is that family and friends too often abandon those doing long stretches of time. One consequence of the latter is that those prisoners do less well in the institution and are more likely to reoffend when they get out. For the social contract to be successful, there has to be a social part of it. More community resources and more help for families and better support systems for those we incarcerate (and incarcerating fewer) all lead to less crime. To our shame, we in this country are far more interested in punishing crime than we are in preventing it.