WASHINGTON (CN) – The Supreme Court seemed to offer sympathy but no relief Tuesday in a pair of cases involving double jeopardy and self-incrimination.
Accused safe robber Michael Currier brought the double-jeopardy case. Though the state of Virginia indicted Currier in 2012 on charges of breaking and entering, grand larceny, and possessing a firearm after being convicted of a felony, the trial court severed the gun charge to keep any reference to Currier’s past crimes from prejudicing the jury against him.
After each trial, Currier stood convicted only of the gun charge.
Currier claimed that that the trial on the gun charge allowed the government to improperly relitigate the robbery charges of which he was acquitted, but both the Virginia Court of Appeals and state Supreme Court ruled against him.
Virginia Deputy Solicitor General Matthew McGuire argued before the U.S. Supreme Court on Tuesday that Currier waived his right to raise the double -jeopardy issue when he agreed to sever the trial.
“Once he’s made some choices, he’s going to either have one trial where he now has allowed this to come in to prove the felon-in-possession charge, or he goes to two trials, in which case our position is he’s given up his right to argue that the second trial should be barred,” McGuire said.
Justice Sonia Sotomayor questioned the wisdom of forcing defendants to navigate such a stark trade off of rights.
“He’s entitled to a separate trial,” Sotomayor said. “Why does he need to give that up?”
Arguing for Currier, Jeffrey Fisher with the Stanford Law School Supreme Court Litigation Clinic urged the justices to follow the court’s precedent.
“The court has never held that the right to the preclusive effect of an acquittal in any form, whether it’s claim preclusion or issue preclusion, can be waived,” Fisher said.
But Justice Anthony Kennedy expressed concern that a reversal for Currier would scare prosecutors away from severing potentially prejudicial charges.
“Suppose you prevail in this case,” Kennedy said to Fisher. “Would a state then say, OK, what we’ll do is we’ll just try both of them together and the jury will hear all the evidence about the felony? Are you happy with what you wish for here?”
It was Justice Stephen Breyer meanwhile who voiced concern in the self-incrimination case, which arose from the prosecution of Matthew Vogt.
A former police officer, Vogt faced felony charges in Kansas after making admissions in a job interview about keeping a knife he found on the job.
After the charges against him were dismissed for lack of probable cause, Vogt brought a civil complaint alleging violations of his Fifth Amendment rights.
Kansas wants the Supreme Court to reverse the 10th Circuit after it found that the reference to criminal cases in the Fifth Amendment does not confine the right against self-incrimination simply to statements made during trial.
At oral arguments Tuesday, Breyer called the ramifications of such precedent “major.”
When Breyer said the hearing transcript did not show the state used Vogt’s statements, or that Vogt’s attorneys objected to them, he faced a somewhat heated exchange with Chief Justice John Roberts.
“As far as I’m concerned, coming in and saying I want to know about this thing that’s not in the record is no different from somebody else coming off of the street and saying: hey, wait a minute, I know what happened in this case,” Roberts said.
But Justice Ruth Bader Ginsburg meanwhile pressed the city’s attorney, Toby Heytens, about his claim that violations of the self-incrimination clause can happen only at limited points during the criminal process.
“In making that argument, Mr. Heytens, you’re shrinking the privilege to nothing, because there aren’t many trials nowadays,” Ginsburg said. “Upwards of 95 percent of cases are disposed by plea bargaining. So by limiting the Fifth Amendment to there must be a trial, there must be a witness at trial, you are saying effectively the Fifth Amendment, which is considered very important, is out of the picture in most criminal cases?”
Heytens is an attorney for Hays with the University of Virginia’s Supreme Court Litigation Clinic. Representing Vogt, Orrick attorney Kelsi Corkran argued that the court would be carving a sharp tool for prosecutors to more easily secure guilty pleas if it finds that the text of the Fifth Amendment does not restrict the protections against self-incrimination to comments made during trial.
“The defendant will be in a position where they won’t know about the admissibility determination until they have rolled the dice and gone to trial,” Corkran said. “The vast majority of defendants are going to take the more conservative route and take that guilty plea even though the government it turns out didn’t have even enough evidence to show probable cause.”