Prosecuting the exonerated: actual innocence and the double jeopardy clause.

• Author: Barry, Jordan M.

INTRODUCTION I. THE DOUBLE JEOPARDY CLAUSE AND THE SUPREME COURT II. SCHLUP V. DELO AND THE ACTUAL INNOCENCE GATEWAY III. THE INTERSECTION OF SCHLUP AND THE DOUBLE JEOPARDY CLAUSE A. Practical Implications of an Acquittal to a Successful Habeas' Petitioner B. Actual Innocence Under Schlup as an Acquittal 1. Evidentiary distinction 2. Presumptive distinction 3. Probabilistic distinction C. Possible Arguments Against Treating a Finding of Actual Innocence Under Schlup as an Acquittal 1. Conceptual objections 2. Federalism objections 3. Chilling effect objections CONCLUSION APPENDIX INTRODUCTION

Robert Shaw owned a jewelry store in Phoenix, Arizona. During a robbery of his store, a robber brutally beat him on the head with a skillet before strangling him to death with his own necktie. (1) In 1998, the State of Arizona charged Paris Carriger with the murder. (2) In January of 1999, Carriger entered into a plea bargain with the State, under which he pled no contest. (3)

At first blush, this might not seem very unusual. But Robert Shaw was murdered in March of 1978, (4) and in July of 1978, the State of Arizona convicted Carriger of the murder and sentenced him to death. (5) He spent nineteen years on death row. (6) Then, in December of 1997, Carriger proved to a court that he was innocent. (7) The Ninth Circuit, sitting en banc, ruled that prosecutors had violated Carriger's constitutional rights and that "no reasonable juror hearing all of the now-available evidence would [find] Carriger [guilty] beyond a reasonable doubt." (8)

Carriger is not the only person to face a second state prosecution after being convicted by state authorities and exonerated by a federal court. At the same time that the State of Arizona was charging Carriger with the murder of Robert Shaw, the State of Missouri was charging Lloyd Schlup with the murder of Arthur Dade. (9) Like Carriger, Schlup had already been convicted of the murder and sentenced to death. (10) Schlup had spent over ten years on death row, (11) twice came within hours of being executed, (12) and won an appeal to the United States Supreme Court (13) before the United States District Court for the Eastern District of Missouri ruled him innocent of Dade's murder. (14) And as recently as 2008, the State of Tennessee charged Paul House with the murder of Carolyn Muncey after the United States Supreme Court itself had ruled that "it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt." (15) Prior to his exoneration, House had spent over twenty years on death row. (16)

Each of these cases--and others like them--followed a similar course. (17) After being convicted in state court, the accused pursued direct appeals within their respective state court systems. (18) When these failed, they launched collateral attacks on their convictions and sentences by filing for writs of habeas corpus in their respective state systems. (19) When these too failed, they filed for writs of habeas corpus in federal court, where they faced significant procedural obstacles. Because of incurable procedural defects in each defendant's petition, the federal courts initially refused to even consider their arguments for relief. (20) To overcome those obstacles, all three men took advantage of the "fundamental miscarriage of justice" doctrine. This doctrine holds that if a habeas petitioner (21) establishes that she is actually innocent of the crime for which she was convicted, her wrongful conviction and imprisonment constitute a fundamental miscarriage of justice. This dire result enables a court to overcome procedural barriers and consider the merits of her habeas corpus claims. (22) Over the last decade and a half, thousands of habeas petitioners have invoked this doctrine in their attempts to secure federal habeas relief. (23)

The Supreme Court delineated the modern contours of the fundamental miscarriage of justice doctrine in Schlup v. Delo. (24) In Schlup, the Court held that a petitioner seeking relief under the doctrine must bring forth new evidence and establish that "it is more likely than not that no reasonable juror would have convicted him in ... light of the new evidence." (25) If a petitioner meets this high burden, he may overcome the procedural barriers that would otherwise bar his path and have a federal court consider his habeas petition on the merits. (26) Courts sometimes refer to the fundamental miscarriage of justice doctrine as the "actual innocence gateway," because a showing of innocence opens a gateway that the petitioner may pass through to have his claims heard on the merits. (27) Carriger, Schlup, and House all passed through the actual innocence gateway, succeeded on the merits of their habeas petitions, and were granted relief by the federal courts. (28)

Yet a successful habeas petition is often not a final victory for the petitioner. A successful petition usually invalidates a trial or sentencing proceeding on the ground that the proceeding was legally flawed. (29) However, the government is generally free to initiate a new trial or sentencing proceeding. (30) Thus, a successful petitioner may soon find herself back on trial for the same offense and, ultimately, back in prison. (31) In fact, a petitioner who is granted a new trial will often remain incarcerated before and during that trial. (32)

One might wonder how this result relates to the Fifth Amendment's edict that no "person be subject for the same offence to be twice put in jeopardy of life or limb." (33) The Supreme Court has interpreted this provision, more commonly known as the Double Jeopardy Clause, as protecting a defendant from retrial on a charge for which she has already been acquitted. (34) In this context, the Supreme Court has defined an acquittal as a ruling that resolves "some or all of the factual elements of the offense charged" in the defendant's favor. (35) In other words, to constitute an acquittal, a ruling must be based on the defendant's factual innocence of the crime charged. Since most writs of habeas corpus are granted on grounds that are independent of the petitioner's innocence, (36) the Double Jeopardy Clause generally poses no bar to retrial. (37)

However, this Article argues that a habeas petitioner who establishes her innocence under Schlup or an equivalent standard (38) is differently situated from other habeas petitioners: she has secured a court ruling that she is factually innocent of the crime at issue and has thus been acquitted for purposes of the Double Jeopardy Clause. Accordingly, if a court subsequently grants relief on the merits of her habeas petition, the government cannot retry her for the same offense. This Article presents and explores this novel argument, supported both by Supreme Court precedent and the principles and policies underlying the Double Jeopardy Clause, which no party has yet raised and no court has yet considered.

Experience has shown that this issue has significant practical importance. Prosecutors are often the last to be convinced of a petitioner's innocence. The federal court rulings exonerating Paris Carriger, Lloyd Schlup, and Paul House failed to persuade the respective state prosecutors pursuing them. (39) Each of these men was once again forced to expend considerable time and energy preparing for a trial. (40) The extreme anxiety that generally accompanies the possibility of conviction and incarceration was heightened for them, both because they were keenly aware of the risk of wrongful conviction and because the state continued to imprison them during the pendency of their trials. (41) In the case of Lloyd Schlup, the state prosecutors even went so far as to seek the death penalty at his second trial. (42) This continued state of uncertainty was particularly difficult for Schlup and his family because he had come within hours of being executed on two previous occasions. (43)

Further prosecution of a petitioner who has established his innocence is also objectionable because it gives the state leverage that it may use to induce the exonerated petitioner to enter into a plea bargain. If the state offers the opportunity to plead guilty in exchange for time served, the petitioner may be tempted to accept in order to put his wrongful conviction behind him and ensure his freedom, even if the state is unlikely to win at trial. But a guilty plea can have two important consequences: First, it may hinder a lawsuit for wrongful conviction or lower the damages the petitioner can recover. (44) Worse, it enables the prosecution to change the story's narrative from "Wrongfully Convicted Man Freed" to "Man Found 'Innocent' Admits His Guilt." (45) Both of these results reduce accountability and impede the functioning of the criminal justice system. If this Article's argument is correct, then Lloyd Schlup, Paris Carriger, Paul House, and others like them would have been able to put an end to the criminal proceedings initiated against them after their judicial exonerations.

This Article begins in Part I by discussing the history of the Double Jeopardy Clause and the Supreme Court's interpretation of it. Part II analyzes Schlup's actual innocence gateway and similar standards and places them in the context of the relevant habeas corpus jurisprudence. This Article then proceeds to analyze the intersection of these two legal doctrines in Part III, which also discusses the policy implications and addresses the most likely counterarguments.

1. THE DOUBLE JEOPARDY CLAUSE AND THE SUPREME COURT

   For the first 150 years of its existence, the Supreme Court had relatively little occasion to develop its double jeopardy jurisprudence. In 1833, the Court ruled that the Double Jeopardy Clause did not apply to the states. (46) The Court later held that the federal government required explicit statutory authority to pursue criminal appeals, (47) and this authority was not provided until the enactment of the...