Argument analysis: Grappling with the complexity of double jeopardy

During yesterday’s oral argument in Currier v. Virginia, Justice Stephen Breyer stated what most constitutional scholars know about double jeopardy: “It’s complicated.” The argument reflected this complexity, with seven justices focusing on different branches of the double jeopardy protection and on different aspects of the case.

In brief, Michael Currier was charged with three crimes stemming from a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny, and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had briefly possessed the guns in the safe during his participation in the break-in. A Virginia court rule permits a felon-in-possession charge to be severed before trial with the agreement of the defendant, and, under Virginia Supreme Court precedent, felon-in-possession charges must be severed absent agreement of both parties to joinder. Accordingly, the state moved to sever the felon-in-possession charge and Currier agreed.

The commonwealth chose to try the substantive charges first and Currier was acquitted. He then invoked the issue-preclusion component of the double jeopardy clause, arguing that the jury’s acquittal had resolved the question of whether he had participated in the burglary in his favor. Thus, since the jury had acquitted him of participation in the burglary, the state was precluded from introducing any evidence of his alleged involvement in the break-in and theft. Virginia argued that Currier’s consent to the severance waived his issue-preclusion claim. The trial court denied the motion and Currier was convicted. The Virginia Court of Appeals upheld the conviction and the Virginia Supreme Court affirmed.

Representing Currier in the Supreme Court, Jeffrey Fisher argued that the double jeopardy right had not been waived. He maintained that issue preclusion – which protects the finality of an acquittal – is distinct from the right against multiple trials for the same offense. As he pointed out, issue preclusion does not even necessarily bar a second trial; it only precludes relitigation of an issue that the jury has determined in the defendant’s favor. Because the protections are different, Currier’s agreement to sever the counts to avoid prejudice at trial was not inconsistent with his right to assert the preclusive effect of his acquittal. Fisher distinguished the Supreme Court’s precedent, for example, Jeffers v. United States, in which the court held that a defendant who moved for a severance of counts waived his objection to multiple trials, on the ground that none of those cases involved a jury’s acquittal at the first proceeding. In those cases, the only issue was whether a defendant could be tried twice: The protection afforded to a jury’s acquittal was not in issue. Rather, Fisher stressed the court’s consistent protection for the finality of an acquittal, from Ashe v. Swenson through Turner v. Arkansas, to Yeager v. United States, in which the court upheld the application of issue preclusion to bar relitigation of mistried counts when a defendant was acquitted of some counts and the jury hung on others.

For his part, Matthew McGuire, representing Virginia, argued that the defendant’s agreement to sever the counts was a waiver of his issue-preclusion claim because it was an agreement to multiple trials. According to McGuire, “if [a defendant] doesn’t object to it,” he has “gone ahead willingly” with separate trials.” McGuire also rejected Fisher’s attempt to bring the case within the ambit of the Supreme Court’s issue-preclusion precedent rather than its multiple-trials cases. Accordingly, he argued that this case is controlled by the Jeffers court’s holding that an objection to multiple trials is waived by the defendant’s motion for a severance.

Erica Ross, representing the federal government as amicus, supported Virginia’s argument that the defendant had agreed not to invoke his right against multiple trials.

In their questioning, the justices grappled with the multiple strands of the substantive double jeopardy protection as well as the scope of a purported waiver by conduct. At the outset, Justice Sonia Sotomayor focused on the waiver issue. To her, Currier’s agreement to separate trials was not even an “agreement,” because it gave him no more than he was entitled to under Virginia law: Had he said nothing, the charges would have been severed. Thus, as in states where severance is not up to the parties but is mandatory, such as Nevada or Arkansas, the preclusive effect of the acquittal would not have been waived. She also suggested that Currier’s agreement to the severance was “a Hobson’s choice” between risking the prejudicial effect of a joint trial or asserting his double jeopardy protection. Justice Elena Kagan identified the different strands of double jeopardy protection – protection of the finality of an acquittal and protection against multiple trials – and  suggested that although a defendant’s agreement to multiple trials might be inconsistent with objecting to multiple trials after a conviction, that consent is not inconsistent with invoking the preclusive effect of an acquittal at the first proceeding. Moreover, Kagan rather pointedly suggested that in such a case, a colloquy followed by an express waiver of that protection should be required before a finding of waiver can be made.

Breyer seemed to accept the argument that issue preclusion might apply, or that an express waiver might be required, but he was concerned about the practical consequences of holding that the issue had not been waived. Breyer worried that such a holding would cause the prosecution routinely to oppose severance, resulting in jointly tried charges that would lead to appeals by defendants claiming the charges should have been severed, and draining resources. He suggested that it would be simpler, and perhaps better, to leave resolution of the scope of the double jeopardy protection for another day and to resolve the case on the question presented: whether issue preclusion applies when the defendant has agreed to separate trials under the circumstances here.

Justice Anthony Kennedy, joined by Chief Justice John Roberts, seemed to think that the defendant’s refusal to agree to joinder under Virginia law was effectively a waiver. In addition, like Breyer, Kennedy expressed concern about the practical effect of the Supreme Court’s holding if Currier prevailed – that the prosecution would refuse to consent and thus routinely bring the charges together – asking Fisher if he was “happy with what you wish for here?” In response, Fisher argued that in jurisdictions without Virginia’s rule, the prosecution might still want to sever either in the interests of an accurate verdict or to bring its strongest case first. If the prosecution secured a conviction, the second charge would likely be dismissed. Acquittals, as in this case, are extremely rare.

Justice Samuel Alito was clearly skeptical of Currier’s argument that the double jeopardy protection had not been waived. He suggested that Ashe’s collateral-estoppel doctrine simply provides one definition of “same offense” for double jeopardy purposes, and that issue preclusion is not a right distinct from the right against multiple trials for the “same offense.” In this respect, he indicated, the double jeopardy protection does not distinguish between multiple trials involving acquittals or convictions.

Justice Neil Gorsuch questioned whether “law of the case” might be a better argument than collateral estoppel, and was leery of a holding that he felt would make the collateral-estoppel protection stronger in criminal cases than in civil cases.

Justice Ruth Bader Ginsburg pointed out that the Virginia Court of Appeals, which issued the dispositive opinion below, affirmed because it believed that government overreaching was a necessary ingredient of issue preclusion, and that government overreaching was absent here. McGuire agreed, and conceded that a defendant does not need to prove prosecutorial overreaching in order to assert issue preclusion. Nevertheless, he suggested that issue preclusion is not appropriate when a defendant has agreed to successive proceedings.

Anyone familiar with oral argument in the Supreme Court would have noticed the exceptionally high intellectual plane of the Supreme Court’s discourse yesterday. The justices were clearly struggling, yet again, with the interpretation of the double jeopardy clause. Given the complexity of the substantive double jeopardy analysis and the court’s express disagreement about the significance of a defendant’s agreement to sever, it seems likely that the case will be decided on the issue of whether Currier waived his right to claim the preclusive effect of his acquittal. After all, that was the question upon which certiorari was granted and on which the lower courts have disagreed. And as Kagan indicated, the problem in this case may have arisen because the scope of an agreement to sever is unclear, and the court “could establish a background rule almost whichever way we establish the background rule and people would then be aware of the consequences going forward when they agree to sever.” But how the court will rule on that issue is, as noted above, “complicated.” Complex substantive double jeopardy doctrine would tend to support the conclusion that the preclusive effect of Currier’s acquittal was not waived, but practical concerns and other arguments may prevail.