On Point: 12. Double Jeopardy, 5th Am.

State v. Mickey L. Miller, 2017AP2323-CR, 1/29/19, District 1 (not recommended for publication); case activity (including briefs)

Midway through Miller’s trial, the State discovered that two photo arrays had been conducted when both parties thought there had been just one. The State did not immediately disclose this fact. It waited until after the victim testified. The defense obtained a mistrial. The court of appeals holds that double jeopardy did not bar the State from trying Miller again.

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.

Currier v. Virginia, USSC No. 16-1348, 2018 WL 3073763, June 22, 2018, affirming State v. Currier, 779 S.E.2d 834 (Va. App. 2015), reasoning adopted by 798 S.E.2d 164 (Va. 2016); Scotusblog page (includes links to briefs and commentary)

A defendant who agrees to have overlapping charges considered in two separate trials cannot invoke the doctrine of issue preclusion adopted in Ashe v. Swenson, 397 U.S. 436 (1970), and argue that an acquittal in the first trial bars a second trial on the remaining charges.

Currier v. Virginia, USSC No. 16-1348, certiorari granted 10/16/17

Question presented:

Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

State v. Anthony Alvarado, 2017 WI App 53; case activity (including briefs)

In this recommended-for-publication opinion, the court of appeals tackles an issue of first impression in Wisconsin.

State v. Heather L. Steinhardt, 2017 WI 62, 6/21/17, affirming a per curiam court of appeals opinion; case activity (including briefs)

Steinhardt led her 12 year old daughter to her bedroom so that her husband (the child’s step father) could have sex with her. In fact, Steinhardt sat on the bed while the assault occurred. The majority holds that leading the daughter to the assault and sitting on the bed during the assault are 2 different acts supporting 3 different crimes and punishments. Justice Abrahamson (joined by A.W. Bradley) calls Steinhardt’s crimes “revolting and detestable” but insists the “constitutional guarantees against double jeopardy protect us all, even Heather Steinhardt.” Dissent ¶47.

State v. Sambath Pal, 2017 WI 44, 4/28/17, affirming a court of appeals summary disposition, 2015AP1782-CR; case activity (including briefs)

Driver crashes into group of motorcyclists, kills one, mortally injures a second, flees the scene, and eventually pleads guilty to 2 counts of hit and run resulting in death contrary to §346.67(1). He’s sentenced to 2 consecutive terms of 10 years IC and 10 years ES. Questions Presented: Did driver commit 1 offense or 2? And is his sentence unduly harsh?

State v. George W. Mallum, III, 2016AP765-CR, District 1, 12/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Mallum was convicted of two counts of disorderly conduct arising out of a single incident, but because the charges were not identical in fact the convictions are not multiplicitous.

Review of a court of appeals summary disposition; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?

(2) Is the defendant’s sentence unduly harsh?