July 1, 2002
"No Reason to Shelve the Dog-Mauling Case"--A Commentary Coauthored by Prof. Akhil Amar and Vikram Amar
(This essay was originally published in the June 30, 2002, edition of the Los Angeles Times.)
No Reason to Shelve the Dog-Mauling Case
By Akhil Reed Amar and Vikram David Amar
Is the Marjorie Knoller dog-mauling case over?
Superior Court Judge James Warren recently let stand the jury's involuntary manslaughter conviction of Knoller in the dog-mauling death of her neighbor, Diane Whipple, in January 2001. But he threw out the jury's decision to convict Knoller of second-degree murder. Neither ruling is likely to be reversed on appeal.
The magnitude of Warren's decision depends upon whether and how Knoller can be retried on the murder charge. On its face, the judge's ruling simply granted a new trial on the murder count. But many commentators--even the prosecutors themselves--immediately began hinting that the game was over because of a constitutional principle known as double jeopardy.
Properly construed, double jeopardy does not bar retrying Knoller for murder. But some ill-reasoned judicial language from the California Supreme Court misinterpreting state statutes may nevertheless foreclose her retrial. If so, the legitimacy of Warren's decision declines, and the rules giving him the power to make such a decision should be rethought.
The 5th Amendment of the U.S. Constitution says that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The California Constitution contains similar language. The word "jeopardy" comes from the French "jeuperdre"--a "game" that one might "lose." The big idea here is simple enough: For any given offense, the government may play the adjudication game only once.
If the defendant wins fair and square, the government cannot simply ignore this verdict and retry him. Conversely, if the government wins fair and square, it may punish the defendant only once for the crime. Whether the government wins or loses, however, it is entitled to play the game to the end. If the trial is called off before its completion and resumed later (like a baseball game delayed by rain), then the resumption is not a second jeopardy but simply a continuation of the first.
In the Knoller case, then, the question is, did the murder charge reach a final conclusion?
No. Had the jury voted Knoller not guilty of murder, the murder game would indeed be over. Once the jury acquits, that's that. So too, typically, if a trial judge acquits. Had Warren dismissed the murder charge against Knoller on the ground that there was simply not enough evidence for a reasonable jury to find Knoller acted with the state of mind required for murder, the murder game would have been over.
But Warren's decision to grant a new trial was not an acquittal. He merely said that he personally didn't find the evidence of guilt sufficient. In other words, had he been a juror, he would have voted to acquit.
Under California law, that is all it takes to throw out the jury's verdict and grant a new trial. In effect, the judge is authorized to act as a "13th juror" and grant a new trial if he personally would have voted to acquit and believes justice would be served by a new trial on a clean slate. Such sweeping power is given to judges in California as a special safeguard to ensure that defendants are not erroneously convicted and punished.
But--and this is key--a grant of a new trial because the judge isn't convinced of guilt is not an acquittal. It does not end the first jeopardy game; it merely continues it.
Jeopardy clearly ended on the involuntary manslaughter charge because Warren let that conviction stand. But this should not prevent the government from playing out the murder charge because the manslaughter and murder charges are not, to use the 5th Amendment's words, the "same offense." Manslaughter and murder are related crimes. But the rules, known as elements, to determine manslaughter are different from those of murder. In particular, murder requires an additional element (proof of intent by the defendant) that is not required under manslaughter. Manslaughter, it is said, is a "lesser- included" offense within murder. And the maximum punishment for manslaughter is only four years, while for second-degree murder it is 15 years to life.
Although courts have often been careless in their language, there is no absolute double-jeopardy bar to trying someone on an offense merely because he has already been convicted on a lesser-included offense arising out of the same incident. The two offenses are distinct, and as long as the prosecutor has a good reason for splitting them into two separate trials, there should be no constitutional problem.
Thus, according to long-standing U.S. Supreme Court doctrine, a defendant already convicted and serving time for attempted murder can properly be tried again--for murder--if the crime victim dies of his wounds after the first trial ends. So too in the Knoller case, the prosecutor has a good reason for breaking up the murder and manslaughter offenses into two trials--namely, the fact that Warren granted the new trial motion.
But would it be fair for the government, should it prevail on the murder charge, to claim two victories against Knoller--to chalk up two in the win column--and get two cumulative sentences imposed upon her?
No, and the U.S. Supreme Court has said as much. But as long as the manslaughter conviction and sentence are erased in the event of a murder conviction and sentence, double-jeopardy principles are satisfied.
All this makes good sense and is completely consistent with the federal and California constitutions. The California Supreme Court, however, in a 1996 case, read a California statute as flatly barring a retrial on a greater offense whenever there is already a conviction on a lesser-included one. In that case, a jury convicted a defendant of vehicular manslaughter but could not reach unanimity on the greater offense of gross vehicular manslaughter, which requires an additional element. After a hung-jury mistrial was declared on the greater charge, the state Supreme Court said that retrial was barred under a state statute because of the conviction on the lesser-included offense.
Although this result and the reasoning supporting it are outlandish, the case might be technically distinguishable from Knoller's situation: The first jury in her case, after all, did not hang on the murder count but reached a consensus of guilt.
But if California courts construe state law to bar Knoller's second murder trial, that means Warren's grant of a new trial will be treated as an acquittal even though it failed to meet the proper legal standards for acquittal. In effect, the judge becomes much more than a 13th juror with one voice out of 13; instead, he transforms himself into a jury of one, who single-handedly can decide innocence even if reasonable jurors could and did come out the other way.
Yogi Berra once said, "It ain't over till it's over." But in California, judicial misinterpretation may well mean that it's over even though it shouldn't be.
Vikram David Amar is professor of law at UC Hastings, College of the Law. Akhil Reed Amar is Southmayd Professor of Law at Yale Law School.