On Point: F. Successive prosecutions, Sec. 939.71

State v. James P. Killian, 2023 WI 52, 06/21/23, reversing a published court of appeals decision; case activity (including briefs)

The state’s threat to add new charges against Killian during a trial that ended in a mistrial didn’t expand the scope of the protection against double jeopardy to those new charges.

Smith v. United States, USSC No. 21-1576, 2023 WL 4002949 (June 15, 2023), affirming United States v. Smith, 22 F. 4th 1236 (11th Cir. 2022); Scotusblog page (including links to briefs and commentary).

A unanimous Supreme Court holds that the Constitution does not bar retrial of a defendant whose conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location.

State v. James P. Killian, 2022 WI App 43; review granted 1/20/23; reversed, 2023 WI 52; case activity (including briefs)

The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants the circuit court dismissed the new case as a violation of double jeopardy. The court of appeals affirms.

Denezpi v. United States, No. 20-7622, 2022 WL 2111348, June 13, 2022, affirming U.S. v. Denezpi, 979 F.3d 777 (10th Cir. 2020); Scotusblog page (including briefs and commentary)

Denezpi was prosecuted in the Court of Indian Offenses, a creature of the federal Bureau of Indian Affairs that provides a criminal court system for those (relatively few) tribes that haven’t set up their own. After serving a 140-day sentence in that prosecution, he was charged for and convicted of the same conduct in federal court—and ultimately given a 30-year sentence. The Supreme Court rejects his claim that the second prosecution was barred by the Double Jeopardy Clause.

State v. Alec D. Alford, 2020AP2072-CR, District 2, 3/23/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Dismissal with prejudice for failing to comply with the time limit under the intrastate detainer statute isn’t an “acquittal on the merits” under § 939.71 and thus doesn’t bar filing new charges based on the same course of conduct.

State v. Alexander M. Schultz, 2020 WI 24, affirming a published court of appeals opinion; 3/4/20; case activity (including briefs)

In a 4-3 decision, SCOW holds that the State may assert a vague charging period (i.e “late summer to early fall”) for repeated child sexual assault, but then constructively narrow the charging period after trial in order to bring a second prosecution for child sexual assault without violating the Double Jeopardy Clause.

Terance Martez Gamble v. United States, USSC No. 17-646, 2019 WL 2493923, June 17, 2019, affirming United States v. Gamble, 694 Fed. Appx. 750 (11th Cir. 2017); Scotusblog page (includes links to briefs and commentary)

Gamble challenged the validity of the “dual-sovereignty” doctrine, which holds that it doesn’t violate the Fifth Amendment’s Double Jeopardy Clause to convict a person in both state and federal court for the same crime. By a 7-2 vote, the Court rejects his challenge.

State v. Alexander M. Schultz, 2017AP1977-CR, petition for review granted 4/9/19; case activity (including briefs)

Issues (derived from petition for review):

When determining whether two offenses charged in successive prosecutions are the same in fact for purposes of the Double Jeopardy Clause, how does the court determine the scope of jeopardy when the charged timeframe is ambiguous?

When there is ambiguity in the timeframe of the charging document who bears the burden resulting from the ambiguity–the defendant or the State?

State v. Alexander M. Schultz, 2019 WI App 3, petition for review granted 4/9/19; case activity (including briefs)

Addressing an issue of first impression in Wisconsin, the court of appeals holds that to ascertain the scope of the double jeopardy bar against a successive prosecution when the charging language of the prior case is ambiguous, a court must consider, in light of the entire record of the prior case, how a reasonable person familiar with the facts and circumstances of a particular case would understand that charging language. Applying the test here, the court rules Schultz’s prosecution wasn’t barred.

Terance Martez Gamble v. United States, USSC No. 17-646, certiorari granted 6/28/18

Question presented:

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.