I have a question for the legal eagles about double jeopardy...

[bjornolf]

http://www.timesdispatch.com/rtd/news/local/crime/article/EXEC14_20090713-222405/279820/

This guy Powell murdered and raped a woman and raped and tried to murder her younger sister in their home. He was found guilty of capital murder and sentenced to death, but the VA Supreme Court overturned on appeal, saying that they hadn't proved the rape and needed to try him on murder 1. After that, Powell wrote the prosecutor a detailed letter taunting him, describing how he raped her during the attack. They re-tried him on capital murder with the new evidence of the letter and found him guilty and he was sentenced to die again. Now the SCOTUS has stopped the execution so that they can decide whether to take the case. His attorneys are claiming double jeopardy. I have a few questions about this.

1. Why didn't the attorneys claim double jeopardy DURING the trial (maybe they did)?

2. Is it double jeopardy if there's new evidence (his letter to the attorney where he admitted to everything)? I'm not sure how that works.

Thanks. This just seemed like an odd case where there might be an exception to the double jeopardy rule. Also, does double jeopardy apply when you were found guilty and it was overturned, since he wasn't straight up acquitted?

[blazindw]

http://www.timesdispatch.com/rtd/news/local/crime/article/EXEC14_20090713-222405/279820/

This guy Powell murdered and raped a woman and raped and tried to murder her younger sister in their home. He was found guilty of capital murder and sentenced to death, but the VA Supreme Court overturned on appeal, saying that they hadn't proved the rape and needed to try him on murder 1. After that, Powell wrote the prosecutor a detailed letter taunting him, describing how he raped her during the attack. They re-tried him on capital murder with the new evidence of the letter and found him guilty and he was sentenced to die again. Now the SCOTUS has stopped the execution so that they can decide whether to take the case. His attorneys are claiming double jeopardy. I have a few questions about this.

1. Why didn't the attorneys claim double jeopardy DURING the trial (maybe they did)?

2. Is it double jeopardy if there's new evidence (his letter to the attorney where he admitted to everything)? I'm not sure how that works.

Thanks. This just seemed like an odd case where there might be an exception to the double jeopardy rule. Also, does double jeopardy apply when you were found guilty and it was overturned, since he wasn't straight up acquitted?

You're okay in being confused. That's why the SCOTUS has stepped in; this is definitely in the grey area. Of course, you can have a mistrial and be retried on the same charges and that doesn't qualify for double jeopardy. I think the hinge is whether an overturned guilty verdict qualifies as being declared not guilty for the purposes of double jeopardy. My educated guess as an attorney is that it's not, but of course, the SCOTUS has seen some issue that has compelled them to look further into it.

[Jim3k]

I think this is going to turn on whether in the first trial, the VA supreme court overturned the rape aspect on the basis of insufficient evidence and whether that is tantamount to a verdict of acquittal on the rape.

If he is deemed to have been tried and acquitted of the rape, it should not have been part of the retrial for the murder. It will depend in large part on what the Va supreme court actually did. If, as a matter of law, it held that the evidence of the rape was no sufficient to support a guilty verdict, I think that will be held to be an acquittal, and double jeopardy would apply.

[tommy]

I think this is going to turn on whether in the first trial, the VA supreme court overturned the rape aspect on the basis of insufficient evidence and whether that is tantamount to a verdict of acquittal on the rape.

If he is deemed to have been tried and acquitted of the rape, it should not have been part of the retrial for the murder. It will depend in large part on what the Va supreme court actually did. If, as a matter of law, it held that the evidence of the rape was no sufficient to support a guilty verdict, I think that will be held to be an acquittal, and double jeopardy would apply.

You are correct. If the conviction of the substantive offense was reversed for insufficiency of the evidence, as you stated it was, then retrial of that offense is barred by the Double Jeopardy Clause. Burks v. United States, 437 U.S. 1. It doesn't matter that the prosecution has additional evidence now. The subsequent prosecution is barred.

[bjornolf]

They DID prove that he raped the sister. Apparently, he attempted to rape the first victim, but was unsuccessful for some reason. My understanding was that even attempted rape qualified. Assuming they tried for rape the first time, could they have tried for attempted rape the second time? Would that be different enough to avoid double jeopardy?

[missfinch]

What about the argument that he isn't actually being charged with the rape in the second trial? Or, would proving the elements of rape to support the murder charge (if that's how it played out) still be considered DJ?

[bjornolf]

I think he was tried under the capital murder charge both times, which basically involves committing another felony along with a murder. I was wondering if they could combine the rape and attempted murder on the sister with her murder to get there, but I'm not sure about that (the two crimes occurred within hours of each other, as he apparently did in the victim, then apparently sat in her place, smoked a cigarette and had a drink waiting for the sister to come home, then attacked the sister). So, the double jeopardy claim is that he was tried for capital murder twice. My question would be why didn't the defense attorneys complain about that DURING the trial, instead of after (maybe they did, but it got turned down for some reason)? Apparently, they COULD still have tried him for murder 1 alone without worrying about double jeopardy (that's what the VA supreme court recommended), but they wanted the death penalty, and it's much harder in VA to get the death penalty for murder 1 than for capital murder apparently. Again, I'm no expert, but that's my understanding from what I've read.

[missfinch]

I think he was tried under the capital murder charge both times, which basically involves committing another felony along with a murder. I was wondering if they could combine the rape and attempted murder on the sister with her murder to get there, but I'm not sure about that (the two crimes occurred within hours of each other, as he apparently did in the victim, then apparently sat in her place, smoked a cigarette and had a drink waiting for the sister to come home, then attacked the sister). So, the double jeopardy claim is that he was tried for capital murder twice. My question would be why didn't the defense attorneys complain about that DURING the trial, instead of after (maybe they did, but it got turned down for some reason)? Apparently, they COULD still have tried him for murder 1 alone without worrying about double jeopardy (that's what the VA supreme court recommended), but they wanted the death penalty, and it's much harder in VA to get the death penalty for murder 1 than for capital murder apparently. Again, I'm no expert, but that's my understanding from what I've read.

Yeah, without knowing the details of the Virginia homicide statutes or the specifics of the charge (which other felony was used as the basis for the murder charge in each trial), it's hard to say how strong the double jeopardy argument is, but I'm sure it was raised in the lower court or along with an ineffective assistance of counsel argument now.

[Greg_Newton]

I've never really understood why there isn't an exception to the double jeopardy rule in cases where the defendant admits his guilt in no uncertain terms after being acquitted. A system that allows a rapist/murderer to openly flaunt his guilt and taunt the victim's family post-trial with no consequences seems very flawed... boy, if there was ever an argument for capital punishment, this guy is it.

[tommy]

Several things are unknown here. One is how the original case was charged. Second is what he was convicted of in the first trial. Third is what the Ct of Appeal and Va. Supreme Ct ruled upon and what they held. Fourth is what the prosecution re-tried him on.

Some of the terminology being used in this thread is a bit nonspecific too. I'm in California, but in California "murder 1" can be committed in many ways. One is by willful, deliberate, and premeditated murder. Another way is by "felony murder" whereby the defendant (or a co-defendant) kills the victim in the course of committing another felony, such as rape, robbery, or many other enumerated felonies. In California, attempts to commit those crimes, where death results, also qualifies as felony murder. I have a feeling Jim3K, by using the term "murder 1" was referring to willful, deliberate, and premeditated murder only.

In any event, if the case had been a California case, and he had been convicted of attempted rape of the second sister in the first trial, and that sister died in the course of that crime, that would be felony-murder, which is first degree murder by law. And it would have made him death-penalty eligible regardless of anything regarding the first sister.

What did the Virgina Supreme Court decide, other than that the evidence of rape of the first sister was insufficient as a matter of law, thereby reversing that rape conviction (and what I assume was a felony murder conviction based upon that rape) and barring its retrial?

[sue71]

Several things are unknown here. One is how the original case was charged. Second is what he was convicted of in the first trial. Third is what the Ct of Appeal and Va. Supreme Ct ruled upon and what they held. Fourth is what the prosecution re-tried him on.

Some of the terminology being used in this thread is a bit nonspecific too. I'm in California, but in California "murder 1" can be committed in many ways. One is by willful, deliberate, and premeditated murder. Another way is by "felony murder" whereby the defendant (or a co-defendant) kills the victim in the course of committing another felony, such as rape, robbery, or many other enumerated felonies. In California, attempts to commit those crimes, where death results, also qualifies as felony murder. I have a feeling Jim3K, by using the term "murder 1" was referring to willful, deliberate, and premeditated murder only.

In any event, if the case had been a California case, and he had been convicted of attempted rape of the second sister in the first trial, and that sister died in the course of that crime, that would be felony-murder, which is first degree murder by law. And it would have made him death-penalty eligible regardless of anything regarding the first sister.

What did the Virgina Supreme Court decide, other than that the evidence of rape of the first sister was insufficient as a matter of law, thereby reversing that rape conviction (and what I assume was a felony murder conviction based upon that rape) and barring its retrial?

Geez, you'd think some people here were lawyers or DAs or judges or otherwise important scholarly law types. :p

[Jim3k]

Several things are unknown here. One is how the original case was charged. Second is what he was convicted of in the first trial. Third is what the Ct of Appeal and Va. Supreme Ct ruled upon and what they held. Fourth is what the prosecution re-tried him on.

Some of the terminology being used in this thread is a bit nonspecific too. I'm in California, but in California "murder 1" can be committed in many ways. One is by willful, deliberate, and premeditated murder. Another way is by "felony murder" whereby the defendant (or a co-defendant) kills the victim in the course of committing another felony, such as rape, robbery, or many other enumerated felonies. In California, attempts to commit those crimes, where death results, also qualifies as felony murder. I have a feeling Jim3K, by using the term "murder 1" was referring to willful, deliberate, and premeditated murder only.

In any event, if the case had been a California case, and he had been convicted of attempted rape of the second sister in the first trial, and that sister died in the course of that crime, that would be felony-murder, which is first degree murder by law. And it would have made him death-penalty eligible regardless of anything regarding the first sister.

What did the Virgina Supreme Court decide, other than that the evidence of rape of the first sister was insufficient as a matter of law, thereby reversing that rape conviction (and what I assume was a felony murder conviction based upon that rape) and barring its retrial?

Reading between the lines, I think this was an enhanced penalty for murder one. If you commit a murder in the course of another felony (usually there's a list and rape is commonly on it), under that type of statute, it is a capital offense. If you commit an act of murder one without an accompanying felony, it is not capital murder.

Assuming he was acquitted of the rape, then the second murder trial should not have been of the capital variety.

His taunting is certainly offensive and I understand the anger. But double jeopardy still applies. That's true under both the US Constitution and the Virginia Constitution (http://en.wikipedia.org/wiki/Constitution_of_Virginia#Article_I_-_Bill_of_Rights).

[bjornolf]

Cool. Thanks Jim3K.

To Tommy- thanks as well. My understanding is that murder 1 in VA is just the first definition you used, basically premeditated murder, and it's much harder, maybe impossible, to get the death penalty in those cases in VA for just that. CAPITAL murder is the other definition you used for murder 1 in California, basically that you murder someone while committing another felony, such as rape or armed robbery or kidnapping, and the death penalty is much easier to get in VA in those cases. My understanding from the article was that they tried him for capital murder in both cases, and that in the first case, the VA supreme court sent it back on the overturning and said they could retry him for just the murder 1, plus the rape and attempted murder of the sister. Now, what I don't understand is why the judge would have even accepted the capital murder case the second time if double jeopardy was so obvious. I mean, isn't it part of his job to avoid wasting tax payer money in those instances?

[Cavlaw]

The court opinions are accessible online, for those truly curious about the procedural history.

[bjornolf]

Yea, but I wouldn't understand 90% of it. My training in legalese ends with IP law. That's why I asked you geniuses on here. ;) I meant that literally mods, not sarcastically, before you bust me!