Category Archives: criminal procedure

On Christmas Day, 2011, we discussed Batman: Noel, mentioning that one of the issues present was actually the subject of a then-pending Supreme Court Case, U.S. v. Jones.

Well, the Court has just handed down its opinion in that case. SCOTUSblog has an excellent analysis of the opinion, which was only unanimous to the extent that all the justices agreed with the appellee’s contention that the use of this wireless GPS device to track his vehicle violated his Fourth Amendment rights.

The justices disagreed, however, on exactly what “Fourth Amendment rights” meant in this case. The majority opinion (Scalia, Roberts, Kennedy, Thomas, Sotomayor) was the narrowest and seems to mostly stand for the proposition that law enforcement agencies would be well advised to get a warrant before doing this sort of thing, but it stops short of holding that a warrant is categorically necessary. They essentially held that the physical intrusion of the device on the car was a “search” but punted on the use of the technology. The four-justice concurring opinion (Alito, Ginsburg, Breyer, Kagan), wanted to talk more about whether or not there was a reasonable expectation of privacy with respect to the use of GPS tracking and suggested that the longer the tracking goes on, the more of an expectation there is. Sotomayor also filed her own concurring opinion which actually criticizes the majority opinion—which she joined—suggesting that if the cops try to get too funky with warrantless, wireless tracking, she may well side with the other bloc of justices and opt for a ban.

While we certainly didn’t predict how this was going to play out in terms of the justices voting patterns, this is basically what we predicted would happen overall.  As we said, “The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant.” So ultimately, the Court didn’t decide the former issue but suggested that the latter is probably true. At the very least, using a physical device attached to one’s person or property now constitutes a “search” under the Fourth Amendment.

So this isn’t precisely a “retcon” as much as it is an update. The original post suggested that Batman probably needed a warrant to use that tracer on Bob Cratchit, and today’s opinion in Jones says that this is correct.

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.