The double jeopardy clause, newly discovered evidence, and an 'unofficial' exception to double jeopardy: a comparative international perspective.

• Author: DeBraccio, Steven V.

1. INTRODUCTION

   It is a common hypothetical posed to law students in criminal procedure classes: if a prosecutor comes across compelling evidence proving a person guilty of a crime of which they have already been acquitted, what can that prosecutor do? The Double Jeopardy Clause to the U.S. Constitution makes the answer patently clear: "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." (1) However, perhaps even more so in recent years, the criminal justice systems in the United States and abroad have struggled with the concrete notion that finality and protection of individual rights must rule the day. (2) The United Kingdom's history regarding double jeopardy prohibition started out much the same way, (3) but in 2003, the parliament passed the Criminal Justice Act, which forever changed the way double jeopardy was applied in the United Kingdom. (4) Under the Act, for certain, specified crimes, a prosecutor could appeal an acquittal and retry a defendant on the grounds that newly discovered evidence incriminated him. (5)

   The United States has remained steadfast in its prohibition of double jeopardy. (6) The U.S. Supreme Court struck down a Maryland statute that allowed prosecutors to appeal acquittals, so even a federal statute allowing re-trial seems unlikely. (7) Further, the repeal of the Fifth Amendment seems highly unlikely. (8) However, research about actors involved in the criminal justice system demonstrates that attempts to curb prosecutorial discretion does not actually get rid of the discretion; it just shifts it to another level in the system. (9)

   The question in this article is whether, with respect to double jeopardy, in the absence of an express statute or constitutional provision permitting re-trials for acquitted defendants, prosecutors could "unofficially" use their discretion to form a loophole to the prohibition against double jeopardy using perjury prosecutions and subsequent civil and forfeiture proceedings used against defendants acquitted of the original charge. Although none of the United States case examples involve defendants who were "re-tried" for perjury or in civil court after authorities found new evidence against them, whether this repackaging of essentially criminal re-trials as civil cases is done with that end in mind (finding a loophole to double jeopardy) is the question that this article confronts. While it is easy to attack such an outcome as academically dishonest and against both the letter and the spirit of the Double Jeopardy Clause, it is difficult to ignore a civilized nation across the ocean such as the United Kingdom being able to retry the "acquitted but actually guilty" without having to resort to such measures. (10)

   In Part II, I will discuss the history of double jeopardy in the United Kingdom and how the murder of Stephen Lawrence spawned an investigative report to overturn the preexisting prohibition against double jeopardy, culminating in its first application against William Dunlop for the murder of Julie Hogg, and most recently, against Stephen Lawrence's killers. (11) Part III examines the history of double jeopardy in the United States, and examines whether concurrent federal and state prosecutions, perjury prosecutions, and civil trials or forfeiture hearings would provide an ample alternative to direct criminal prosecutions with which U.K. prosecutors may proceed. (12) Finally, Part IV concludes that each of these alternatives is insufficient to cover the "wrongfully acquitted" in any meaningful way, and more importantly, are an end run around a historically valuable constitutional right enjoyed by defendants. (13)

2. THE HISTORY OF DOUBLE JEOPARDY IN THE UNITED KINGDOM

   While sources differ on the precise beginning of the prohibition against double jeopardy, it can be said with confidence that it has existed for at least five hundred years. (14) In the United Kingdom, while "[t]he double jeopardy doctrine appeared in cases as early as 1589," and predates case law on the issue by almost two centuries, (15) King Henry VIII passed a law allowing him to try defendants in England who committed offenses in Wales. (16) Moreover, judges could discharge juries that they feared would return an acquittal so the prosecution would get a second try, because jeopardy (according to U.K. law) had not yet attached. (17) Finally, the prosecution was allowed to appeal an acquittal until 1819. (18)

   While the prohibition existed, it was not made concrete until 1964, in Connelly v. Director of Public Prosecutions. (19) In Connelly, the defendant was indicted for robbery with aggravation and murder, in separate indictments. (20) The defendant was convicted of murder, and the Court of Criminal Appeal vacated the conviction and entered a directed verdict of acquittal. (21) The trial judge set aside the second indictment for robbery, waiting for the outcome at the Court of Criminal Appeal on the first indictment. (22) However, after the appeal, the prosecution tried to move forward with the robbery count, and the defendant pleaded autrefois acquit. (23) The trial judge concluded that the jury had not acquitted the defendant on the robbery count and the judge refused to exercise his discretion and express an opinion that the prosecution should not proceed. (24) The defendant then was convicted of robbery, which was affirmed by the Court of Criminal Appeal, after which the defendant appealed to the House of Lords. (25) The House of Lords rejected the defendant's autrefois acquit argument, saying:

   one test as to whether the rule [of autrefois acquit] applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty.... (26) Although the court denied Connelly relief through double jeopardy, the case is important because the House of Lords clarified the rules against double jeopardy. (27) The House of Lords prohibited "prosecuting a defendant for lesser or greater offenses that could have been included within the initial indictment." (28) The three exceptions to this rule were: (1) re-trial of a defendant who was convicted of a lesser-included offense and retried for murder "if the death occur[red] after the acquittal or conviction on the lesser charge," (29) (2) partial jury verdicts--where the jury cannot reach a unanimous decision on some of the lesser included offenses, the defendant could be retried for those offenses, (30) and (3) if the defendant agreed to have separate trials for two indictments. (31)

   Unfortunately, courts continued to misinterpret double jeopardy after Connelly was decided. (32) However, in 1997, the Court of Appeal further clarified Connelly in Regina v. Beedie. (33) The background that led up to the case was unorthodox: on November 29, 1993, Tracy Murphy died of carbon monoxide poisoning because her landlord, Thomas Sim Beedie, did not properly maintain the gas heater in her apartment, (34) In 1994, the landlord was prosecuted by the Health and Safety Executive, (35) and pled guilty to a breach of the duty to ensure that the appliance was maintained and was fined 1918 [pounds sterling]. (36) On April 19, 1996, he first tried to plead autrefois convict (37) because he had already been convicted of a lesser offense related to the conduct that occurred (and the victim did not subsequently die after the plea). (38) The court rejected his plea. (39)

   He subsequently pled guilty to manslaughter and was sentenced to eighteen months' imprisonment, but the sentence was suspended for two years, no Beedie appealed his sentence, and the court quashed the conviction, holding that none of the "special circumstances" cited in Connelly justified the subsequent prosecution. (41) The Court of Appeal rejected the trial court's balancing of "public interests" (42) against the defendant's rights and explained that Connelly stood for the principle that subsequent prosecutions for offenses based upon the same operative facts are presumptively barred absent specified circumstances. (43) Also irrelevant was the fact that different bodies led the prosecutions (the HSE led the first, and the CPS led the second), (44)

   While the fallout was not immediately recognized, Sir William MacPherson compiled a report suggesting drastic changes to police activity. (45) Two years later, the Law Commission too (46) released a report supporting reform in the United Kingdom's prohibition of double jeopardy and other areas of criminal law, citing to the Beedie case in support. (47)

   1. The Stephen Lawrence Murder, Investigation, and Aftermath

      The Beedie case may have frustrated people who saw him walk free from the manslaughter, but the United Kingdom still remained firm in its prohibition of double jeopardy until a brutal murder combined to make the "perfect storm": ugly racial implications, undertones of police misconduct, and an increased sense of public unrest--leading the charge to change double jeopardy.

      On April 22, 1993, Stephen Lawrence died after being stabbed twice by "five or six" white men at a bus stop in South London, according to his friend Duwayne Brooks, who was present at the scene. (48) While Lawrence's family was outraged at the apparent inaction by the police, (49) from May to June 1993, the Crown Prosecution Service ("CPS") investigated and arrested Jamie and Neil Acourt, Gary Dobson, Luke Knight, and David Norris, eventually charging both Acourts and Knight with murder. (50) But just a month later, they dropped the charges against Nell Acourt and Knight for insufficient evidence, (51) despite receiving twenty-six tips that "point[ed] to the gang as racists who carried knives." (52) The CPS dropped its case against the remaining three...