State v. Shirey, Double Jeopardy No Bar to Retrial.
Posted by Edmund R. Folsom
December 24, 2020
Procedural Background
In State v. Shirey, 2020 ME 136 (December 15, 2020), Maine’s Law Court ruled that it does not violate the Maine or U.S. Constitution to re-prosecute a charge of possession of a firearm by a felon where the original indictment was dismissed, at Shirey’s request, after the jury was sworn for trial. Shirey’s original indictment alleged that he possessed a firearm after being convicted in Pennsylvania of an offense punishable by imprisonment for one year or more. The statute that criminalizes possession of a firearm by a felon defines the crime in terms of possessing a firearm after being convicted of a crime in another state punishable by a term of imprisonment exceeding one year. Shirey waited until his jury was selected and sworn and then immediately moved to dismiss the indictment for failure to state an offense.
The trial judge granted Shirey’s motion and dismissed his indictment, reasoning that the allegation would allow the jury to convict Shirey on proof that he was previously convicted of a crime punishable by exactly one year, which is not what the statute criminalizes. The State returned to the grand jury and secured a new indictment, properly alleging the statutory elements. At that point, Shirey moved to dismiss the new indictment, alleging a violation of his rights against double jeopardy under the Maine and U.S. Constitutions. The trial court denied the motion, reasoning that because the indictment did not state an offense the court never had subject matter jurisdiction and jeopardy therefore never “attached” to activate the constitutional protection. Shirey appealed the decision to the Law Court. The Law Court decided that the trial court had reached the right decision, but for the wrong reason.
The Protections of the Double Jeopardy Clause.
The double jeopardy clauses of both the Maine and U.S. Constitutions provide that no person shall be “twice put in jeopardy of life or limb” for the same offense. Both constitutional clauses protect a criminal defendant against retrial after an acquittal, against re-prosecution after a conviction, and against suffering multiple punishments for the same offense. The issue in Shirey was whether any of these protections shielded him from re-prosecution in his particular circumstances.
The Trial Court’s Rationale.
The Law Court first addressed the trial court’s reasons for finding that double jeopardy protections did not bar Shirey’s re-prosecution. The Court rejected the trial court’s conclusion that it lacked subject matter jurisdiction over the original prosecution. In the Law Court’s view, the trial court clearly had subject matter jurisdiction. This was not like a probate court attempting to exercise jurisdiction over a criminal trial. It was a matter of a criminal court exercising jurisdiction in connection with a criminal charge. If Shirey had gone through trial on the defective indictment and been acquitted, double jeopardy protections would bar a new prosecution for the same offense. But Shirey did not go through trial to the point of acquittal or conviction, so how might double jeopardy protections come into play for him?
The Law Court’s Rationale.
Double jeopardy protections do sometimes bar re-prosecution of a person who has not been either convicted or acquitted. But for that to happen, two factors must be present: (1) jeopardy must have “attached,” and (2) jeopardy must have ended under circumstances that bar re-prosecution. In other words, if jeopardy never attaches, double jeopardy protections never apply, and even if jeopardy does attach, the prosecution might end under circumstances that do not bar re-prosecution.
Did Jeopardy “Attach” in Shirey’s Case?
For jeopardy to attach, criminal proceedings must reach a point where the defendant is placed at material risk of conviction. In a bench trial (before a judge, alone, instead of a jury), this point is deemed reached when the first witness is sworn. In a jury trial, it is deemed reached when the jury is sworn. In Shirey’s case, a jury was selected and sworn immediately before Shirey moved for dismissal. For that reason, the Law Court found that jeopardy had in fact attached. But Shirey was not convicted, and he was not acquitted. He also was not subjected to multiple punishments for the same offense, so how might jeopardy have ended in a way that barred retrial?
Was Jeopardy Ended in a Way that Bars Retrial?
There is a third circumstances, other than conviction or acquittal, in which jeopardy ends in a way that bars re-prosecution. That is when the court ends the trial after jeopardy has attached but before verdict or judgment of acquittal, without the defendant’s consent and without manifest necessity. Manifest necessity exists, for instance, when a jury is hopelessly deadlocked and can’t reach a verdict, which is why people can generally be retried after a mistrial due to a hung jury. In that circumstance, jeopardy attaches when the jury is sworn, and the court ends the trial before a verdict is reached, but the jury’s inability to reach a verdict constitutes manifest necessity to end the trial. Manifest necessity aside, though, Shirey consented to the termination of his trial after jeopardy attached – in fact, he specifically requested it – so his trial did not end under circumstances that barred re-prosecution.
Was the Dismissal of the Original Indictment the Functional Equivalent of an Acquittal?
Shirey argued that his trial did end under circumstances that barred re-prosecution because the trial court’s decision to dismiss the indictment served the same function as an acquittal. The Law Court pointed out that the U.S. Supreme Court draws a distinction between dismissals based on substantive grounds and those based on procedural grounds. An acquittal involves a determination that the State’s evidence falls short of proof beyond a reasonable doubt. That is a determination that necessarily involves a substantive evaluation of the evidence. In dismissing Shirey’s charge, the trial court did not engage in any substantive determination of evidence. The trial court simply determined that, no matter what the evidence might be, it could not result in a conviction under the defective charge. The Law Court therefore found that the ground for dismissing Shirey’s charge was procedural, not substantive, and therefore it could not possibly function as an acquittal. The Court went on to explain that dismissal of a defective indictment after jeopardy attaches is governed by the same rules as a mistrial. Again, declaration of a mistrial will bar re-prosecution only when it occurs without the defendant’s consent and without manifest necessity. Because Shirey consented to the dismissal, by specifically requesting it after jeopardy attached, jeopardy did not end under circumstances that bar re-prosecution.
Does Double Jeopardy Bar Retrial Because Acquittal Would Have Been Inevitable on the Original Indictment if the Trial had Proceeded?
Shirey argued that double jeopardy protections barred retrial nevertheless, because the jury would have been compelled to acquit him under the first indictment if the charge had not been dismissed. The Law Court pointed out that Shirey’s argument assumes, without any evidence in the record, that the State would not have been able to prove his prior conviction was punishable by more than one year of imprisonment. The Court also declared that, “from a legal standpoint,” this particular argument is foreclosed by U.S. Supreme Court precedent holding that the dismissal (after jeopardy has attached) of a charging instruments that fails to allege all elements of an offense does not bar retrial. Ultimately, the Law Court concluded that neither the double jeopardy clause of the U.S. Constitution nor of the Maine Constitution bars Shirey’s retrial on a superseding indictment. The Law Court remanded the case to the trial court for trial to proceed.
The lesson of Shirey…? There’s no point waiting until jeopardy attaches to claim the indictment fails to state an offense.
Disclaimer: This post is not legal advice. It is for informational purposes only and is not to be taken as legal advice. No attorney/client relationship arises between the reader and the author as a result of reading this post.
