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Double-Jeopardy Case 1st |of High Court’s Fall Term

WASHINGTON (CN) — The Justice Department faced an uphill Supreme Court battle Tuesday in fighting to retry a Puerto Rican lawmaker who successfully appealed a mixed bribery verdict.

The case stems from a 2005 trip Sen. Hector Martinez-Maldonado took to Las Vegas for a boxing match. U.S. prosecutors say Juan Bravo-Fernandez, the president of Puerto Rican private-security firm Ranger American, paid for the trip in exchange for a legislative favor.

Though a jury convicted both men on a federal bribery charge, it acquitted them of conspiring and traveling to commit bribery under Section 666 of Title 18.

An attorney for the men told the Supreme Court this morning that the inconsistent verdict was unconstitutional and properly overturned by the Boston-based First Circuit.

"When the jury acquitted on conspiracy and travel to commit Program Section 666, bribery, they necessarily decided there was no bribery," said Lisa Blatt, with Washington-based Arnold & Porter.

Justice Ruth Bader Ginsburg proffered another theory: that the jurors decided overlapping charges were government overkill and tossed out the conspiracy to travel to commit bribery charges.

"How do we know that's not what the jury decided," she asked.

Blatt responded quickly and strongly with a question of her own. "Is this court, for the first time in the history of its jurisprudence, going to give any meaning to or relevance to an invalid conviction," Blatt asked. "You have never held an invalid conviction was relevant to or evidence of anything, Justice Ginsburg. And let me just suggest the last place you should start is the double-jeopardy clause, where illegal, invalid, vacated convictions have always been legal nullities."

Though the government has sought to retry the men for bribery, Martinez-Maldonado and Bravo-Fernandez say double jeopardy barred new prosecution of an offense related to issues on which they were acquitted in the earlier trial.

The U.S. Supreme Court opened its October with the case today still short one justice, an occurrence so rare it hasn't happened in 25 years. Assuming there is no 4-4 split, as happened in several high-profile cases the court took up last term, the Supreme Court's decision will determine the scope of retrial power.

Justice Elena Kagan acknowledged that courts "usually" pretend vacated convictions do not exist but questioned Blatt about whether it makes a difference here, when it can tell them something about the jury's decision.

"This court has never used a vacated conviction for any purpose, period," Blatt responded.

The government's attorney meanwhile assured the justices that nothing in the collateral-estoppel component of double jeopardy precludes the government from retrying the men.

"The most essential prerequisite for applying collateral estoppel is that the jury must have actually decided an issue in the defendant's favor, and that prerequisite isn't satisfied here," argued Elizabeth Prelogar, assistant to the U.S. solicitor general.

When juries issue inconsistent verdicts, a defendant cannot argue that acquittal on some charges resolved the matter in their favor, she added.

Chief Justice John Roberts responded to that argument by noting that the jury verdicts in this case might be inconsistent, but there is no way to know.

"So it seems to me that what we're being asked to decide is if the possibility that they might be is enough to allow the government to relitigate the substantive count," Roberts noted.

"And it does seem to me that's a little bit of an extension of what our precedents have said."

Prelogar repeated her stance: collateral estoppel cannot preclude the bribery count from further litigation.

"It's not just whether there's a possibility that the jury resolved issues in their favor," she said. "There has to be a certainty that the jury did that."

On the question of how retrial could affect constitutional rights, Prelogar suggested the tradition of not using vacated convictions is limited to those that stand in for a defendant's guilt. The convictions in this case do not establish that, she said.

Kagan noted that Prelogar had a "tough time" finding examples of any courts using vacated convictions for any purpose, other than a few lower-court rulings.

Prelogar responded that these rulings - one of which is from the Third Circuit - are instructive, and that looking at convictions can help defendants by clarifying the basis of ambiguous verdicts.

For Prelogar, the way to remedy legal error by the jury "is a new trial."

The Cato Institute, the National Association of Criminal Defense Lawyers and the National Association for Public Defense filed amicus briefs in support of Bravo-Fernandez and Martinez-Maldonado. They caution that abusive prosecutorial behavior could emerge if the collateral-estoppel doctrine of the double jeopardy clause is rendered incapable of protecting defendants from reprosecution on vacated convictions.

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