Troubling Double Jeopardy Ruling

Attorney Nathanson was recently interviewed by Massachusetts Lawyers Weekly regarding the First Circuit's troubling decision in United States v. Szypt. In that case, the First Circuit had allowed a defendant to be prosecuted a second time even though the lower court had entered a not guilty finding after the defendant won his first appeal. The First Circuit said its ruling in the first appeal was not intended to order an acquittal, even though that is what the lower court actually ordered. The MLW article quotes Attorney Nathanson:

Nathanson noted that after the 1st Circuit vacated the defendants' convictions, the trial court entered a judgment of acquittal on their behalf, which the government seemingly accepted.

In 2005, Nathanson prevailed on a similar double-jeopardy issue in the case Smith v. Massachusetts, becoming the first Massachusetts public defender to win a case before the U.S. Supreme Court. Even if the District Court judge erred in entering the acquittal in Szpyt, Nathanson said, the Supreme Court has been "very clear" that a mistaken acquittal, if a final judgment, bars further prosecution.

"If we started to do a squishy, horseshoes-and-hand-grenades analysis of whether double-jeopardy rights have been violated, the government would be able to do a lot of scary things," he said.

The lesson for criminal practitioners is: "Pay attention to the remand order," Nathanson said.

"You make sure you get precisely the relief [your client is] entitled to," he said. "That's really what this case is about: whether [the defendants] got the right relief."

But Nathanson said the ruling opens up the possibility that a prosecutor unhappy with a verdict will "wear the defendant down," breaking out allegations that have already been proven in scaled-back subsequent indictments.

As the article recites, Attorney Nathanson has had success raising similar issues in the United States Supreme Court.The defendants and their counsel in this case, Caleigh Milton and Lenny Sharon of Maine, were clearly correct. We wish them success in further challenging this decision. You can read the full MLW article here.