Crime in Prime Time


Bravo-Fernandez v. United States

November 16, 2016

The first oral argument the Supreme Court heard this Fall Term was Bravo-Fernandez v. United States, a case that centers on the Double Jeopardy Clause. Interestingly, this argument was the first of several arguments surrounding criminal prosecutions this term indicating, perhaps, that SCOTUS plans to address a larger issue within criminal procedure through a series of cases.

The facts of the procedurally-complex Bravo-Fernandez depict a classic case of bribery and political corruption: a wealthy would-be beneficiary of pending legislation treats senator to a vacation in Las Vegas. Federal prosecutors charged both the beneficiary and the senator not only for bribery, but also for conspiring to commit bribery and traveling across state lines to do so. A jury convicted both men on the substantive bribery counts, but acquitted them on the conspiracy and interstate travel counts. The U.S. Court of Appeals for the First Circuit overturned the convictions of bribery because of flawed jury instructions.

On remand, the two men argued that their acquittal on the conspiracy and interstate travel counts necessarily precluded a retrial on the bribery counts. They claimed that acquittal of the conspiracy and travel counts depended on the jury fully rejecting the underlying notion that bribery was committed because the facts surrounding the trip have never been in dispute. The defendants reasoned that to allow a retrial of the substantive bribery charges would be a violation of double jeopardy because the jury had already decided that bribery did not occur. After all, bribery was a central element of both the conspiracy and interstate travel charges.

In the courts below, the trial judge, and then the First Circuit, found that the jury may have simply acted irrationally in issuing conflicting verdicts by accepting the bribery theory for some counts but not others; thereby, issue preclusion would not apply and double jeopardy would not be violated on retrial.

Arguing for the petitioners (the defendants) in the Supreme Court was Lisa Blatt, who has already argued thirty-four cases before the Supreme Court—more than any other female litigator in the country.  To make her case, Blatt relied on Ashe v. Swenson, which held that the government only gets one shot to prove a disputed element of a crime and what the jury decides on that element stands. However, Justice Ginsburg questioned the application of Ashe here. She queried, “This jury, we don’t know what it decided because of the inconsistency. . . . [I]t might just have decided that conviction of . . . bribery was enough, and that the government had laid it on too strong by adding the conspiracy and the travel count. How do we know that’s not what they jury decided?”

During the respondent’s argument, Elizabeth Prelogar, the Assistant to the Solicitor General, went uninterrupted for several minutes and without much challenge. She argued that the same logic set forth in United States v. Powell—that jury convictions on some counts and acquittals on others stand even when they are inconsistent—readily applied to the petitioners’ case.

For more information and explanation of the Double Jeopardy Clause, you can read Peter Henning’s article “Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy” in volume 31 the American Criminal Law Review. Another good read is Kyden Creekpaum’s noteWhat’s Wrong with a Little More Double Jeopardy? A 21st Century Recalibration of an Ancient Individual Rightavailable in volume 44. 

Pena-Rodriguez v. Colorado

October 13, 2016

Yesterday, the Supreme Court heard oral arguments in the case of Pena-Rodriguez v. Colorado. This is the most recent chance for the Court to address the issue of racial bias in the criminal justice system. Specifically, Pena-Rodriguez v. Colorado asks whether a Colorado rule—the “no impeachment” rule—that prevents jurors from testifying about jury deliberations prevented Mr. Pena-Rodriguez from exercising his Sixth Amendment right to an impartial jury. 

Mr. Pena-Rodriguez was convicted of assaulting two teenagers in a bathroom. After the verdict, statements made by a juror revealed his overt racial bias against Mexicans. The juror stated “I think he did it because he is Mexican, and Mexican men take whatever they want.” Pursuant to Colorado’s “no impeachment” rule, Pena-Rodriguez was barred from receiving a new trial based on information regarding jury deliberations.

The Court expressed concern over what may follow if it allowed for a constitutional exception to the generally accepted rule of secrecy in jury deliberations. Notably, Chief Justice Roberts and Justice Alito worried that cases involving bias against other protected traits may soon flood courtrooms. The justices’ concerns were balanced against the petitioner’s argument that race is something different than other protected traits. The History of the United States, the structure of the Constitution, and efforts to root out racial bias all highlight why an exception made for racial bias would not automatically be used in cases involving other protected traits. This line of reasoning appeared convincing to several justices, including Justices Sotomayor and Kagan.

Should the Court decide against creating a narrow exception for racial bias in jury deliberations, there are other tools that could mitigate the effect of racial bias on jury verdicts.  An interesting approach to the problem is addressed in an article by Justin Murray, which appeared in the American Criminal Law Review. Murray suggests that prosecutors can lessen racial bias in our criminal justice system by “embrac[ing] a color-conscious vision of their professional duties.”  Justin Murray, Reimagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors, 49 Am. Crim. L. Rev. 1541, 1541 (2010). Doing so could help prevent racial bias from affecting future jury decisions.