Law and the Multiverse Retcon #3

This is the third post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  This time around we’re revisiting another early post, a mailbag post from March.  In that post we considered an Adam West Batman episode in which the Joker and Catwoman were prosecuted by Batman.  One of the issues was whether their plan to pack the jury with henchmen would work or whether they could be re-tried.  Our conclusion was that the acquittal would stand, though there could be other charges (e.g. perjury for the henchmen, since they probably lied during jury selection, and maybe jury tampering for the Joker and Catwoman, or at least their attorney).

As it turns out, however, there is a chance that they could be re-tried.  This has implications not just for this case but lots of other kinds of supervillain courtroom shenanigans, including psychic manipulation of the judge or jury and replacing the judge or jury with henchmen, robot doubles, or shapeshifters.  But before we get to the possible exception, let’s review the general rule against double jeopardy.

I. Double Jeopardy

The Fifth Amendment provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  There are several aspects and limitations to this rule, but we only have to consider two in this case: when is a defendant “in jeopardy” (a.k.a. when does jeopardy “attach?”) and can an acquittal by a jury ever be appealed by the state?

In a jury trial, jeopardy attaches when the jury is selected and sworn in, and this is true of both federal and state courts.  Crist v. Bretz, 437 U.S. 28 (1978).  In non-jury trials jeopardy attaches when the first witness is sworn in.  So it would appear that the Joker and Catwoman were “in jeopardy” at the time of the acquittal.

As to the second question, the general rule is that the prosecution cannot appeal a jury acquittal, an acquittal by a judge, or a judge’s dismissal on the basis of insufficient evidence.  The Supreme Court has stated this repeatedly and in very strong terms:

A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. … To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that “even though innocent he may be found guilty.” United States v. Scott, 437 U.S. 82, 91 (1978) (emphasis added).

The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. Rodrigues v. Hawaii, 469 U.S. 1078, 1079 (1984) (emphasis added).

II. Is There an Exception for Foul Play?

The Court’s language, strong though it is, came out of cases where there was no allegation of foul play by the defendant.  Could a defendant really escape liability by bribing a judge or packing the jury?  If so, it seems like that rule would encourage desperate or powerful defendants (and supervillains looking at a life sentence or the death penalty would fit the bill) to go for broke.  Unfortunately for us, such cases are rare enough that there aren’t a lot of court opinions to go off of.  In fact, there’s really only one modern case: Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).

The Aleman case was an appeal brought by Harry “The Hook” Aleman, a Chicago mobster who was charged with murder, successfully bribed the judge for an acquittal, and then was re-tried (and ultimately convicted) after the bribery was discovered.  The 7th Circuit affirmed the validity of the re-trial, holding that double jeopardy was not violated because Aleman had never been in jeopardy the first time around because the judge was in Aleman’s pocket from the beginning.  Thus, Aleman was never in any real danger of conviction.

How solidly grounded is this rule?  Aleman appealed to the United States Supreme Court, but the Court declined to hear the case, so it’s hard to say definitively.  And the case has not been cited frequently, so we don’t know what other courts would think of it.  Legal scholars were divided on the issue both before and after the case, with some arguing for a limited exception for fraud while others find no room for it in the Constitution.

What’s more, some scholars that supported the Aleman court’s conclusion have proposed that the exception should be limited to corrupt judges and should not apply to a corrupted jury.  See, e.g., Anne Poulin, Double Jeopardy and Judicial Accountability: When is an Acquittal not an Acquittal?, 27 Ariz. St. L.J. 953, 989-90 (1995).

So, what can we learn from this unusual case?

III. Applying the Aleman Exception

The Aleman rule would seem to apply to the Joker and Catwoman, scholarly commentary notwithstanding.  Here’s how the Aleman court summed up its view:

Aleman had to endure none of these risks [“traditionally associated with criminal prosecution”] because he “fixed” his case; the Circuit Court found that Aleman was so sanguine about the certainty of his acquittal that he went so far as to tell [a witness] before the trial that jail was “not an option”. Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort “traditionally associated” with an impartial criminal justice system. Aleman, 138 F.3d at 309.

In the case of the Joker and Catwoman there was similarly no risk because the entire jury consisted of their henchmen.  Their attorney engaged in no cross-examination and even declined to deliver a closing argument, stating only that “we feel sure that the jury will bear out the truth in this case.”  It seems clear that the defendants were never in danger.

But what if they hadn’t gone whole hog?  What if the jury was only partially packed with henchmen?  Would that be enough risk?  Or what if the jury were initially uncorrupt but were later psychically manipulated or bribed?  The Aleman rule seems to imply that as long as there is some risk after jeopardy has attached, then the acquittal must stand.  The implication for a supervillain seems to be not to corrupt the jury until after the trial has started or to leave a couple of token regular jury members in place and hope that they are convinced by the others, although this approach risks a hung jury, mistrial, and re-trial.

Another lesson is not to be as brazen about the fix as the Joker and Catwoman’s attorney was.  In the Aleman case the defense still put on a show, even though they knew what the result would be.  It ultimately didn’t work, but it took about 16 years before the sham was discovered.

On the other hand, outright replacement of the jurors partway through a trial seems like a surefire route to a mistrial, however, as in the case of jurors who become unavailable or are dismissed.  Any robot doubles, shapeshifters, or henchmen would need to be put in place before the jury was sworn in for sure and quite possibly before jury selection.

IV. Conclusion

Under some circumstances it may be possible for a supervillain to abuse the double jeopardy rule despite the Aleman exception.  Nonetheless, the supervillain wouldn’t get away completely free, since he or she would still be guilty of jury tampering and potentially many other crimes (e.g. conspiracy and fraud), but that might be preferable enough to more serious charges to make the gamble worth it.

7 Responses to Law and the Multiverse Retcon #3

  1. The comment regarding jury tampering being a possible charge reminds me of the story our history professor loved to tell regarding double jeopardy where a gangster was acquitted of a killing but, when boasting afterwards about how he really did kill the man and dump the body in the river, got charged with littering (presumably improper disposal of a body would fit too) for the maximum penalty.

    On a side note, Wikipedia notes on the area of Double Jeopardy that “separate sovereignty” can apply too. Someone acquitted by the state can be tried by the Federal government for the same charge as they are considered to be separate entities.

    • The separate sovereigns argument is a good one, but in this case I think the Joker and Catwoman would only be liable in one jurisdiction (i.e. whatever state Gotham is in). I don’t think the crimes they were accused of would fall under federal jurisdiction or the jurisdiction of another state. But a lot of supervillains commit crimes that would trigger both state and federal jurisdiction or the jurisdiction of multiple states, which effectively gives the government more than one bite at the apple, so to speak.

  2. A thought that crossed my mind; what if you replaced the jury after they have been sworn in with doubles, and that later were discovered. Would that be reason enough for a retrial? Since the jury that convicted wasn’t the jury that got sworn in?

    • I think replacement of the jurors partway through a trial would result in a mistrial. This is already what happens if the originally sworn jury becomes unavailable (e.g. by jurors becoming sick, dying, or not showing up). Normally there are a couple of alternate jurors, so it’s rare that enough jurors become unavailable that it’s a problem, but it happens.

      There are at least three theories under which a mistrial could be ordered: (1) the originally sworn jury is missing, (2) the replacement jury was not subject to the jury selection process, and (3) the replacement jury may not have seen all of the evidence.

      Even if a mistrial weren’t ordered, the defendant could possibly still be retried under the Aleman rule if the replacement jury was so likely to render an acquittal that the defendant was not in jeopardy.

  3. It seems as though replacing even a single member of the jury with a henchman would logically mean the defendant was never in jeopardy, since it would be impossible to get a conviction. It is true that there would be a considerable chance of a hung jury and retrial. But that just means the defendant might be in jeopardy (for the first time) during the retrial. Since there is no risk of conviction during the current trial, it doesn’t seem as though jeopardy should attach.

    • It depends on the jurisdiction, though the vast majority require a unanimous verdict. The Sixth Amendment requires a unanimous verdict in federal cases, but states can permit convictions on less than unanimous verdicts because that part of the Sixth Amendment isn’t incorporated by the 14th Amendment. Apodaca v. Oregon, 406 U.S. 404 (1972). The Supreme Court hasn’t drawn an exact line, but the Apodaca case upheld 11-1 and 10-2 convictions, though a later case (Burch v. Louisiana) held that 5-1 was impermissible. Justice Blackmun, concurring in Apodaca, said that he’d be okay with 9-3 but not as far as 7-5. So presumably you could get as many as 3 or possibly even 4 henchmen on a jury while still being in danger of conviction, depending on state law.

      Oregon is, I think, the only state where its trial court of general jurisdiction allows less than unanimous convictions in felony cases. It’s also allowed in Puerto Rico. But Gotham is often located in an unnamed, fictional state, so it could conceivably have a rule like Oregon’s.

  4. Pingback: Time Travel, Resurrection, and Double Jeopardy | Law and the Multiverse

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