Immediately after the Albemarle County Circuit Court judge presiding at the perjury trial of Jason Kessler dismissed the case because the Commonwealth failed to prove that the crime happened in Albemarle County, I was asked whether there were any other options for Commwealth’s Attorney Robert N. Tracci — could the case be revived and re-tried? And my first reaction was to scoff dismissively, citing the Double Jeopardy Clause. Now the Commonwealth’s Attorney has filed a motion to reconsider and to retry. And having read the motion, I was still quite dismissive.
But I was also curious, and I have since followed some of the cases that were cited, and I think there is a stronger argument for a retrial than I had thought at first.
In my defense, I will note that the Kessler case brings together two doctrines that are extremely confusing with no clear doctrinal footing — venue and double jeopardy — and the Virginia courts have not provided any kind of clear answer. But there is a 1978 U.S. Supreme Court case — not cited by the Commonwealth — that makes their argument more clearly than the cases that they did cite. That case is Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). which rather clearly divides the cases into two categories:
1. Cases of “trial error” — where a dismissal is based on something other than a failure to prove one of the essential elements of the case.
The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.
Let’s step back and look at basics.
The Fifth Amendment to the U. S. Constitution provides, in part, that no “person [may] be subject for the same offence to be twice put in jeopardy of life or limb…” This is the Double Jeopardy Clause, made applicable to the states through the Fourteenth Amendment.
The simplest explanation, for the simplest case, is that if you have a trial, and you are found “not guilty” by the judge or a jury, the government can’t try again with a different jury on a different date. The Double Jeopardy Clause says that if the government tries once to prove you guilty, and the judge or jury finds the evidence unpersuasive, you cannot be prosecuted again.
But suppose the case against you is dismissed by the judge for some reason OTHER than “we heard all of the evidence and we find the evidence unpersuasive”? Suppose, for example, any of the following situations:
- At the end of the Commonwealth’s case, the judge finds that although you have been charged with grand larceny, for stealing a rickety old car. Grand larceny requires proof that the thing stolen was worth $200 or more (that is going up to $500 effective July 1, 2018). In this hypothetical, the Commonwealth’s Attorney forgets to ask someone knowledgeable about the value of a clunker, “How much is this car worth?” So there is no proof on the question of value, and the judge tells the Commonwealth’s Attorney, “I am going to drop this down to a misdemeanor.” The prosecutor says, “In that case, judge, we’ll ask to drop the charge.” And then the prosecutor re-indicts and tries again to convict you, this time bringing in a witness who can testify about the value of the car.Can they do that? Most courts would say “No” — the case was dismissed because the evidence was not sufficient, so the decision to throw out the case was based explicitly on a failure to prove guilt.
- You have been convicted and you appeal, claiming that there was no evidence presented of the value of what you took. The Court of Appeals agrees with you and remands to the Circuit Court, usually with some obtuse phrase like “for further proceedings consistent with this opinion.”So what WOULD be “further proceedings consistent with this opinion? In most states, the answer would be to go ahead and enter judgment on the petty larceny. After all, the jury found that you had stolen the car, and the failure of proof of value doesn’t mean you didn’t commit a larceny. I don’t know of any courts that would say, “We’re going to give the government another chance to prove value, so you have to be put on trial a second time for grand larceny.” I am confident that any court would find that a second trial would violate the Double Jeopardy Clause.
- You claim at trial that there was no evidence of venue — no proof that the theft happened in the county that has charged you. The judge says, “No, I think the government DID prove that.” The case goes up to the Virginia Court of Appeals, which finds that there was NOT sufficient evidence of where the car was stolen from. Must the appeals court reverse and dismiss, or is the remedy to reverse and remand back to the trial court for a new trial at which the prosecutor would bring in a cop to say “The street where the car was last seen was in the County of Albemarle.”? In most states, including Virginia (see Sutherland v. Commonwealth, 6 Va. App. 378, 368 S.E.2d 295 (1988)), the prosecution MAY choose to prosecute again.
- Finally, we come to the Jason Kessler case. The prosecution failed to ask any of their witnesses where Kessler had signed the false statement, so there was no evidence of where the crime was committed. At the conclusion of the Commonwealth’s Attorney’s case, the defense attorney, Michael Hallahan, moved to strike the government’s case because the evidence failed to show where the crime was committed. Judge Cheryl Higgins granted the motion. Now the prosecution has filed a motion, asking that the case be reopened and that a new trial be ordered.
The entire doctrine of “double jeopardy” is a mass of legal fictions, accumulated over the generations to make a basic point — that the government only gets one chance to prove its case, and that a defendant has a right guaranteed by the Fifth and Fourteenth Amendments to not be put to trial more than once.
The first legal fiction is the notion that jeopardy “attaches” when one of two things happens — in a judge trial, the first witness is sworn and begins to testify; in a jury trial, when the jury is empaneled and sworn to try the case. Once either of those has happened, we say that the defendant has been placed “in jeopardy.”
The second legal fiction is that jeopardy, having “attached,” may be “dissipated” if a mistrial is ordered or if a conviction gets reversed. This might happen if a jury is unable to make a decision (a “hung jury”); or if the defendant or his lawyer does something outrageous at trial so that a new trial is a “manifest necessity.” Given the limitless potential for criminal trials to end up going sideways, it is hard to say define what kinds of things could happen to constitute a “manifest necessity,” but the general principle there is that if the defense asks for a mistrial, and the judge grants it, the Commonwealth is almost always free to come back and start the trial again. If a mistrial is necessary because of particularly offensive conduct on the part of the prosecution, the court will sometimes not permit a second trial, but that is rare.
This legal fiction that in some cases jeopardy can “dissipate” is an effort to figure out how to bring fundamental justice into this morass of legal fiction doctrines surrounding double jeopardy.
The basic principle that the courts are trying to get to is that when a defendant asks that the court dismiss a case because the evidence against him just isn’t strong enough, an acquittal based on the weakness of the evidence will bar reprosecution. Obviously, if a jury finds the defendant “not guilty,” double jeopardy will bar reprosecution. If at the end of the Commonwealth’s case the judge agrees that the Commonwealth did not present credible evidence to prove an element of the offense, and strikes the evidence, no retrial is permitted.
But suppose the case is dismissed for some other reason that doesn’t go to the guilt or innocence of the accused — like where the prosecution has failed to comply with court rules requiring the prosecution to turn over exculpatory evidence. The Court can declare a mistrial, order the production of the exculpatory evidence, and then order a new trial. See Harris v. Young, 607 F.2d 1081 (4th Cir. 1979).
The Commonwealth in the Kessler case is trying to argue that this dismissal based on the failure to prove venue is the sort of technicality that is not a resolution on the merits — that a dismissal for failing to prove venue is not a commentary on the strength of the evidence on the elements of the offense, relying on Sutherland v. Commonwealth, 6 Va. App. 378, 368 S.E.2d 295 (1988). So how, under this analysis, would the failure to prove venue be different from a failure to prove an element like, say, that the defendant’s actions killed someone?
Let me first get rid of one inaccuracy in the Commonwealth’s memo.
Courts have said that if you prosecute a case in, say, the City of Charlottesville, and the proof is that the offense actually happened in Albemarle County, you can drop the Albemarle case and prosecute in Charlottesville with no worries. The Commonwealth’s memo in support of its motion argued, based in part on the authority of United States v. Jones, No. 7:16-CR-30026, 2017 WL 4638599, (W.D. Va. Oct. 16, 2017), that courts have “repeatedly held that a dismissal for lack of venue after jeopardy has attached does not bar re-prosecution of that offense.” That is not actually what Judge Urbanski ruled in Jones — here is the entire passage from which that quote is derived:
While the Fourth Circuit has not spoken on whether a defendant can be retried when venue is lacking, other courts have “repeatedly held that a dismissal for lack of venue after jeopardy has attached does not bar re-prosecution of that offense.” United States v. Hart–Williams, 967 F.Supp. 73, 76 (E.D.N.Y. 1997); see also United States v. Brunty, 701 F.2d 1375, 1380 n.12 (11th Cir. 1983) (“[I]f such a motion [i.e., a Rule 29 motion] were granted solely due to improper venue, the government would not be prevented from retrying the case in a proper district.”), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983).
Jones does not say that “courts have repeatedly held” that the same prosecutor gets two bites at the apple; Jones does say that a prosecutor in a different place may not be barred if he or she thinks they can prove venue there. The closest case to what the prosecution is arguing here is a Ninth Circuit case out of Arizona —
Jonathan Bennet Kaytso was indicted and charged with assault … The assault is alleged to have occurred in Arizona near the border with Utah. At trial the victim could not recall with accuracy the exact location of the crime. The government having failed to establish venue, Kaytso moved, at the close of the government’s case, for a judgment of acquittal. The court treated Kaytso’s oral motion as one to dismiss and granted it without prejudice to a second indictment. Kaytso was reindicted a week later. The indictment again charged that the assault occurred within the District of Arizona. After oral argument on Kaytso’s second motion to dismiss, the court ruled that double jeopardy was not a bar to reindictment.
While venue presents a question of fact and must be proved by the government, it is not an essential element of the offense. United States v. Powell, 498 F.2d 890, 891 (9th Cir.), cert. denied, 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974). It is the merits of the action that animate jeopardy concerns, and venue in this regard is wholly neutral, a matter of procedure. Wilkett v. United States, 655 F.2d 1007, 1011 (10th Cir.1981), cert. denied sub nom, Conklin v. United States, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). Thus, the failure to establish venue does not go to guilt or innocence. The defendant in this case has chosen by his motion to terminate the proceedings and so forego a verdict based on the merits. Scott, 437 U.S. at 100, 98 S.Ct. at 2198. Under these circumstances, the dismissal cannot be considered an acquittal and so is not shielded by the double jeopardy clause. See Wilkett (retrial in another district permitted after dismissal, during trial, for lack of venue).
This is a more complicated, and less clearly decided, issue than I had previously thought.
