Thursday, June 24, 2021

Fifth Amendment/Double Jeopardy Clause does not bar the government from retrying a defendant who succeeds post-conviction in getting his conviction set aside due to prosecutorial misconduct.


In United States v. Gregory Brown, Jr., 994 F.3d 147 (3d Cir., April 13, 2021), the Third Circuit Court affirmed the District Court's denial of Brown’s motion to dismiss on Double Jeopardy grounds. Brown was convicted in Pennsylvania and sentenced to life in prison for arson, second-degree murder, and insurance fraud. Brown unsuccessfully sought post-conviction relief in Pennsylvania and federal court alleging the prosecution had paid people to testify about the fire. Nearly a decade later, a FOIA request to the ATF revealed two canceled checks showing payment of $5,000 and $10,000 relating to the fire. Brown then located the witnesses who received these checks and successfully won post-conviction relief in Pennsylvania based on prosecutorial misconduct. The court granted him a new trial. 

Upon remand to the state trial court, Brown moved to dismiss the charges on double-jeopardy grounds. While that motion was pending, a federal grand jury indicted Brown, charging him with destruction of property by fire resulting in death under 18 U.S.C. § 844(i). The state dismissed its charges. Brown moved to dismiss the federal indictment, alleging, among other things, that the Double Jeopardy Clause barred the second prosecution. The District Court denied his motion to dismiss the federal indictment.


The Third Circuit agreed, holding that the narrow exception from Oregon v. Kennedy did not apply and so the federal prosecution was not barred by the Double Jeopardy Clause. In Kennedy, the Supreme Court held that the Double Jeopardy Clause forbids retrial only where the (1) defendant successfully moved for a mistrial, and (2) prosecutorial misconduct was intended to prejudice the defendant’s right to have his trial completed by the first jury empaneled. The Kennedy exception does not apply here, where Brown made no motion for a mistrial, and he raised the issue of prosecutorial misconduct post-conviction. Without a successful mistrial motion, it cannot be said that the government intentionally “goaded” the defendant into seeking a mistrial. Further, the court noted that the government’s failure to disclose the witnesses’ compensation was merely an “overzealous” effort to gain a conviction from the first jury and not an attempt to subvert Brown's rights. 

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