Today, the Supreme Court decided Bravo-Fernandez v. United States, affirming the First Circuit’s affirmance of the defendants’ convictions. The question presented was whether an appellate reversal of a conviction in a mixed verdict case, i.e., where the jury had acquitted on some counts and convicted on others, barred a retrial where the same facts that were necessary to the acquittal were necessary to the conviction, under Ashe v. Swenson’s collateral estoppel rules. The Court held that retrial is not barred by an appellate reversal on unrelated grounds where the trial verdicts are simply inconsistent.
Interestingly, the Court left open the possibility that an appellate reversal of inconsistent convictions might bar retrial where the reversal is on a related ground that permits the court to explain the inconsistency in a way that would give the acquittals preclusive effect.
Justice Thomas filed a separate decision, suggesting that the Court should reconsider Ashe v. Swenson and its progeny, Yeager v. United States, but concurring on the ground that the Court had not extended either decision.
- Bravo-Fernandez v. United States, No. 15-537, Slip Opp. (Nov. 29, 2016) (Court’s PDF).
- United States v. Bravo-Fernandez, Nos. 14-1089, 14-1091, 790 F.3d 41 (1st Cir. 2015).
- Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
- Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 174 L.Ed.2d 78 (2009) (SCOTUS page).
Michael Skakel, who was convicted 10 years ago of murdering his Greenwich, Connecticut neighbor, 15-year-old Martha Moxley, was recently released from prison after a judge found he was denied the effective assistance of counsel. The case has achieved notoriety because Mr. Skakel is a Kennedy relative. Yesterday (Nov. 6, 2013), however, he was refused bail and ordered to return to prison to await a new trial, or an appeal. On November 6, 2014, the judge who ordered the new trial granted the prosecutor’s motion to deny bail pending appeal or a new trial. The Judge stated that any bail decision should be handled by the new judge who will preside over all subsequent proceedings.
Alison Leigh Cowan, Judge Who Overturned Skakel Murder Conviction Declines Bail Request, N.Y. Times, Nov. 6, 2013.
In the Arias murder trial, the jury deadlocked eight to four in favor of the death penalty. Arizona is just one of two states that permit a retrial where a jury deadlocks on punishment in a death penalty case. The other states provide that a post-deadlock sentence be one of life imprisonment.
The U.S. Supreme Court has long held that a hung jury in a typical criminal case does not prohibit retrial. Briefly, the theory behind that holding is that the first, initial jeopardy does not terminate with a hung jury, so the prosecution can simply continue. Presumably, although the situation is a bit ghoulish, the same theory would likely apply to permit the Arias prosecutor to retry the penalty phase of the trial.
Still, does it make sense to retry the death penalty case? Aside from the time, expense, and anguish associated with a retrial, a new jury would have to be selected and some of the evidence the original jury heard during the guilt phase of the first trial would have to be presented to the second sentencing jury, which would never have heard it. The judge has the option of sentencing Arias to life without parole or 25 years to life in place of a retrial.
For further information about the jury’s deliberations, read here.