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Double jeopardy and lesser offenses

Back in September, I regaled you with a teen romance story, ultra-modern variety.  The short version is that our client (I handled the appeal, not the trial), a 16-year-old boy, had taken his 15-year-old girlfriend into a bathroom stall at school and had her perform oral sex on him.  The festivities had been interrupted by someone coming into the bathroom; when he left, the two resumed.  The school got wind of it, and the young man found himself charged with rape and kidnapping.  He argued consent at the trial in Juvenile Court, buttressed by the testimony of the girl's friends and his own probation officer, who testified that the she'd been on the phone when the alleged victim called him and apologized for claiming that he'd forced her into the act. 

Two months later, the trial judge handed down a decision which, somewhat bewilderingly, determined that there were actually two sexual episodes -- the first before the interloper came into the bathroom, and the second after he left -- and that while the first episode was consensual, the second was not.  What was even more bizarre, the court convicted the defendant of attempted rape and attempted kidnapping.

As I chronicled back in September, the court of appeals had little trouble reversing that; given that penetration was admitted, there was no "attempt," and either the defendant was guilty of rape and kidnapping or he wasn't guilty of anything, depending upon whether there was consent.  After determining that the trial court "abused its discretion" in amending the original charges, it stated, "we reverse and remand this matter to the trial court for a new hearing."

A new hearing on what?

See, this is where things get funky.  There's a substantial body of case law, starting with a 1957 Supreme Court case, Green v. US, 355 US 184, which holds that a conviction of a lesser offense is an automatic acquittal of the greater offense.  In Green, the defendant had been charged with first degree murder, found guilty of second degree murder, then had his conviction reversed; at his second trial, he was convicted of first degree murder.  The Supreme Court said that was a no-no, and violated the double jeopardy clause:  by convicting him of second degree murder, the jury had implicitly acquitted him of the greater offense, so he couldn't be tried for that again.

And there's Ohio case law to the same effect, notably, State v. Edmundson.  In that case, the defendant had been charged with welfare fraud of over $5,000, a 4th degree felony.  The trial court, however, convicted her of only a 5th degree felony, after deducting the amounts that she would have received if she'd been truthful.  The court of appeals reversed that, and the Supreme Court affirmed, both courts concluding that it's the total amount you take, not the amount you wrongfully take, that determines what degree of crime you've committed.

But here's the interesting thing.  The court of appeals had first reversed and remanded the case for a new hearing, but then issued another journal entry affirming the conviction of the 5th degree felony; as the Supreme Court noted,

The court of appeals' correction of its judgment was necessary insofar as reversal and remand would have been a futile exercise; double-jeopardy principles barred the state from pursuing the grand theft charges because the trial court's finding of guilt on the lesser-included offenses operated as an acquittal of the greater offenses.

In the main brief in our case, we argued that the only appropriate action was discharging the defendant:  he couldn't be tried for rape and kidnapping because of double jeopardy, and the court had just concluded that there was no basis for convicting him of an attempt to commit those crimes.  When the court reversed the delinquency finding and remanded the case for "a new hearing," we even filed a motion for reconsideration.  The appellate court didn't buy it, not only denying our motion, but stating,

Further, we clarify our journal entry and opinion to specify that this matter is remanded to the trial court for a new delinquency hearing.  And stop bugging us about this.

Okay, they didn't include that last sentence, but they were probably tempted.  We appealed to the Supreme Court, and last week they told us to get lost, too.

So now what?  We go back to the juvenile court, which, given the court of appeals opinion, certainly can't convict our client of attempted rape and kidnapping, barring blatant perjury by everybody involved.  It can't constitutionally convict our client of rape and kidnapping, either.  What could happen is that we file a motion of once in jeopardy on the main crimes, the judge overrules it and finds our client guilty of either or both, and we wind up in the court of appeals again, arguing that that's impermissible, which is an issue that should have been decided the first time around.

God, I love the law.

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