The Structural Protections of the Double Jeopardy Clause

Michael Currier, like more and more defendants in recent years, was charged with multiple, overlapping offenses: (1) breaking and entering, (2) grand larceny, and (3) possession of a firearm as a convicted felon. This charging decision turned on an aggressive application of Virginia ’s felon-in-possession statute, because the alleged firearm violation here was fleeting happenstance: Currier supposedly “handled” the victim’s firearms by moving them out of the way in order to commit the different offense of stealing money from a safe. If Currier had been tried on all thes e charges at once, the evidence needed to show he was a convicted felon would have been unduly prejudicial on the two primary counts (evidence of past, unrelated criminal behavior is generally inadmissible). The Commonwealth recognized this potential for prejudice, and therefore moved to sever the f elon-in-possession count. It opted to try the primary offenses first, and the jury acquitted Currier of the breaking and entering and grand larceny charges. Undeterred, the Commonwealth pressed forward on the felon-in-possession count, refining its case to present the same underlying factual theory to a second jury. And on this second go-round, Currier was convicted. As Cato argued in ourrecent amicus brief, Currier ’s conviction is squarely in conflict with the Double Jeopardy Clause of the Fifth Amendment. That provision guarantees that no person shall be “twice put in jeopardy of life or limb” for...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs