Fifth Amendment - the covert narrowing of double jeopardy precedent: the Supreme Court's real reason for hearing Schiro v. Farley.

AuthorLane, James R.
PositionSupreme Court Review - Case Note
  1. INTRODUCTION

    In Schiro v. Farley,(1) the Supreme Court denied Thomas Schiro's claim that his death sentence violated both the Double Jeopardy Clause and principles of collateral estoppel. Relying on Stroud v. United States,(2) the Court reasoned that because a second sentencing proceeding is ordinarily constitutional following a retrial, an original sentencing hearing does not violate the Double Jeopardy Clause.(3) Further, Justice O'Connor stated that Schiro failed to meet his burden of showing that the issue upon which he desired collateral estoppel effect had been decided in his favor.(4)

    This Note argues that, although the majority reached the correct result, the Court's true motivation for granting certiorari was to adjust the scope of Bullington v. Missouri.(5) By ignoring Bullington's focus on capital sentencing procedure and instead referring to it as a "narrow exception," Justice O'Connor removed the effective use of Bullington as precedent without having to explicitly overrule the case. The fact that Justice O'Connor could easily have distinguished the two cases on a factual basis, without adjusting the scope of Bullington, brings this point to bear.

    This Note further argues that, with regard to the issue of collateral estoppel, Justice Stevens' dissent was a misstatement of the law. The majority correctly focused on the burden of proof detailed in Ashe v. Swenson(6) and rightly found that Schiro failed to meet this burden.

  2. BACKGROUND

    The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."(7) The United States Supreme Court has viewed the Clause as having three distinct purposes: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."(8) The Court has determined, however, that among these concerns, the controlling constitutional principle is the need to protect against successive prosecutions.(9) In addressing this issue, the Court has struggled to establish a rule as to when a sentencing hearing is itself a successive prosecution.(10) Implicit within this quandary is the issue of jury action or inaction on a given matter, and what constitutes an acquittal for purposes of double jeopardy and collateral estoppel analysis--specifically, when jury silence on a given charge is tantamount to an acquittal for double jeopardy purposes.

    1. SENTENCING AS A SUCCESSIVE PROSECUTION

      In Stroud v. United States,(11) the Court held that where a court grants a new trial due to assignment of error, a defendant may not claim double jeopardy based upon the imposition of a harsher sentence at retrial.(12) Stroud was indicted for first degree murder after killing a prison guard at Leavenworth, Kansas where he was incarcerated.(13) At his first trial, the jury found Stroud guilty and sentenced him to death.(14) After an admission of error by the prosecuting attorney, the court reversed the verdict and sentence, and the State retried Stroud.(15) At his second trial, the jury again found Stroud guilty, but chose not to impose the death sentence.(16) Upon writ of error to the United States Supreme Court, the Solicitor General of the United States confessed error and the case was again reversed and remanded.(17) At his third trial, the jury again found Stroud guilty of first degree murder but made no recommendation as to capital punishment.(18) The trial court imposed the death sentence.(19) Stroud appealed to the Supreme Court claiming a violation of the Double Jeopardy Clause based on the jury's decision in the second trial not to sentence him to death.(20)

      Writing for a unanimous Court, Justice Jay found no merit in Stroud's claim.(21) Justice Jay reasoned that, although the second jury did indeed provide guilt "without capital punishment," all three of the convictions established guilt for first degree murder.(22) Therefore, the second jury's decision to impose a sentence of life rather than death was a proper mitigation of punishment but did not reduce the charge to one of a lesser offense.(23) Justice Jay reasoned that Stroud could not, therefore, argue that the result acted as an acquittal for double jeopardy purposes.(24) The Court further provided that the three multiple trials and convictions did not violate the purposes of the Double Jeopardy Clause because the earlier trials were reversed based upon the petitioner's request for a finding of error.(25)

      The Court again addressed the issue of sentencing in relation to the Double Jeopardy Clause in United States v. DiFrancesco.(26) The United States appealed DiFrancesco's sentence, claiming that it was too lenient in light of the trial court's finding that the defendant fit the category of a "dangerous special offender."(27) The court of appeals dismissed the Government's claim based on the Double Jeopardy Clause.(28) The United States Supreme Court disagreed, reasoning that the "prohibition against multiple trials is the 'controlling constitutional principle'."(29) Writing for the majority, Justice Blackmun therefore concluded that a government appeal of a sentence does not necessarily offend the Double Jeopardy Clause.(30) The Court further reasoned that, based on principles of common law, courts should not view the imposition of a sentence with the same finality as an acquittal.(31) Justice Blackmun concluded that the Double Jeopardy Clause, itself based upon principles of common law, did not provide defendants any specific right to know their sentence at any specific moment in time.(32) The Court further provided that such a result did not violate the double jeopardy bar against multiple punishment.(33) Justice Blackmun reasoned that if a defendant has not begun to serve the original sentence, it is constitutional to either lessen or increase it.(34)

      Bullington v. Missouri(35) altered the line of decisions represented by Stroud and DiFrancesco. In Bullington, the Court addressed whether the reasoning of Stroud applies when a jury makes a sentencing decision at a second stage where the prosecution has to prove certain elements beyond a reasonable doubt prior to the jury imposing the death penalty.(36) Under Missouri law, a defendant convicted of first degree murder receives one of only two possible sentences, death or life imprisonment.(37) To impose death, the same jury that found the defendant guilty at trial must find, beyond a reasonable doubt, the existence of aggravating circumstances that warrant the death penalty.(38)

      Bullington was indicted for capital murder after abducting a woman and drowning her.(39) The jury found the defendant guilty, and the prosecution sought the death penalty.(40) The jury rejected the prosecution's argument and returned a recommendation of life imprisonment.(41) Bullington appealed and the Missouri Court of Appeals reversed and remanded his conviction.(42) While preparing for the new trial, the prosecution informed the defendant that it would again seek the death penalty.(43) The defense argued that such prosecution would violate the Double Jeopardy Clause.(44) The trial court agreed and prohibited the prosecution from seeking the death penalty.(45) The prosecution sought a mandamus ruling on the issue from the Missouri Court of Appeals for the Western District which rejected the prosecution's argument.(46) On appeal to the Missouri Supreme Court, the prosecution successfully argued its case to pursue the death penalty.(47) The Supreme Court of the United States granted certiorari.(48)

      Recognizing its earlier holdings in Stroud and DiFrancesco, the Court distinguished this case by virtue of the sentencing procedure that Bullington faced under Missouri law.(49) Specifically, the Court determined that the jury's limited ability to choose one of only two sentences, and the trial-like nature of the sentencing hearing, were significant distinguishing factors.(50) The Court reasoned that similarity to trial was the primary distinguishing characteristic from its previous cases.(51) Although there was a bifurcated process at issue in DiFrancesco, the Court distinguished it from the process in Bullington because it allowed for appellate review on appeal of sentence rather than providing another opportunity to convince a trier of fact to impose a heavier sentence.(52) Thus, the majority reasoned that in addressing a question of double jeopardy in regards to sentencing, the key issue is one of procedure.(53) Specifically, when the sentencing procedure forces the prosecution to prove a case beyond a reasonable doubt, the jury's rejection of that case acts as an acquittal as to the issue argued, just as it would at trial.(54) Because Bullington had already faced a 'trial' on the issue of the death penalty and was acquitted, retrying that issue would violate the Double Jeopardy Clause.(55)

      Intrinsic within the holding of Bullington is the question of what constitutes an acquittal for purposes of sentencing. The Court had already addressed this question in Green v. United States.(56) Green was indicted on charges of first and second degree murder.(57) The jury returned a verdict of guilty as to second degree murder, but left the verdict sheet for first degree murder blank.(58) On appeal, the court reversed Green's conviction based on insufficient evidence.(59) On remand, Green was again tried for both first and second degree murder, notwithstanding his plea of former jeopardy as to first degree murder.(60) At this second trial, the jury found Green guilty of first degree murder and sentenced him to death.(61) After the court of appeals rejected Green's plea of double jeopardy, the Supreme Court granted certiorari to address the Double Jeopardy Clause.(62)

      The Supreme Court held that the first jury's silence on the issue of...

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