If you agree to severance of charges, you can’t invoke Double Jeopardy to stop the second trial from happening.
Facts: After an empty gun safe was found in a river, Michael Currier was charged with burglary, grand larceny, and felon-in-possession. To avoid prejudice from evidence of his felony coming in, Mr. Currier agreed to sever the counts: the burglary and grand larceny charges would be tried first, followed by a trial on the felon-in-possession charge. After Mr. Currier was acquitted at the first trial, he argued that holding the second trial would amount to Double Jeopardy because any felon-in-possession conviction would necessarily depend on issues found in his favor in the first trial: If he hadn’t stolen the guns from the safe, how could he have possessed them?
Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of acquittal.
Holding: By consenting to severance of charges, Mr. Currier consented to the second trial and waived any right to invoke Double Jeopardy against it. As the majority reasoned, “the ‘prosecutorial or judicial overreaching’ forbidden by the Constitution” is not a concern “when a second trial follows” thanks to the defendant’s voluntary act. Slip op. at 7 (quoting United States v. Scott, 437 U.S. 82, 96, 99 (1978)).
Of Note: Justice Gorsuch’s majority opinion casts shade at the idea that the relitigation of a particular issue (e.g., whether Mr. Currier took guns from the safe) can ever support a claim of double jeopardy. That rule comes from a 1970 decision called Ashe v. Swenson, 397 U.S. 436 (1970), which held that the government violated the Double Jeopardy Clause by prosecuting the robbery of six poker players one victim at a time. As the Currier majority observes, “[s]ome have argued that [Ashe] sits uneasily with this Court’s double jeopardy precedent and the Constitution’s original meaning.” Slip op. at 4. With Kennedy off the Court, Ashe’s days may be numbered.
Takeaway: If you are thinking about requesting or consenting to severance of charges, consider the potential impact on any Double Jeopardy claims you may have down the line.
Further reading: To get further in the weeds of Double Jeopardy doctrine (it’s complicated!), check out the opinion analysis from SCOTUSblog