WASHINGTON (CN) – By a razor-thin margin, an accused safe robber who cried double jeopardy after fighting to have the charges against him drawn out over two trials lost his Supreme Court battle Friday.
Indicted six years ago in Virginia on charges of breaking and entering, grand larceny and possessing a firearm after being convicted of a felony, Michael Currier sought to have the gun charge severed from the other counts out of concern that a reference to past crimes would prejudice the jury.
Currier was acquitted at the burglary and larceny trial, however, prompting him to raise double-jeopardy objections before the second.
With the court declining to either toss the charge or remove any reference to the safe robbery from the proceedings, the second jury found Currier guilty of the gun charge.
The U.S. Supreme Court took up the case after Currier’s appeals bottomed out, but it ruled against him as well Friday in a 5-4 opinion.
“No one disputes that the Constitution permitted Virginia to try all three charges at once with appropriate cautionary instructions,” Justice Neil Gorsuch wrote in the lead opinion. “So this simply isn’t a case where the defendant had to give up one constitutional right to secure another. Instead, Mr. Currier faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits. It might have been a hard choice. But litigants every day face difficult decisions. Whether it’s the defendant who finds himself … forced to choose between allowing an imperfect trial to proceed or seeking a second that promises its own risks. Or whether it’s the defendant who must decide between exercising his right to testify in his own defense or keeping impeachment evidence of past bad acts from the jury. This court has held repeatedly that difficult strategic choices like these are ‘not the same as no choice,’ and the Constitution ‘does not … forbid requiring’ a litigant to make them.”
In the last section of the ruling, Gorsuch went on to tackle Currier’s unsuccessful bid for evidence exclusion in the second trial.
“Today, some state courts grant severance motions liberally to benefit defendants,” Gorsuch wrote. “But what would happen if this court unilaterally increased the costs associated with severance in the form of allowing issue preclusion for defendants only? Granting a severance is no small thing. It means a court must expend resources for two trials where the Constitution would have permitted one. Witnesses and victims must endure a more protracted ordeal. States sometimes accept these costs to protect a defendant from potential prejudice. But 20 States appearing before us have warned that some jurisdictions might respond to any decision increasing the costs of severed trials by making them less freely available. Of course, that’s only a prediction. But it’s a hard if unwanted fact that ‘today’s elaborate body of procedural rules’ can contribute to making ‘trials expensive [and] rare.’ And it would be a mistake to ignore the possibility that by making severances more costly we might wind up making them rarer too.”
Justice Anthony Kennedy concurred in the previous sections of the ruling but did not join this final section. He noted in a separate opinion that Parts I and II of Gorusch’s decision “suffice to resolve the case in a full and proper way.”
Justice Ruth Bader Ginsburg wrote in dissent meanwhile that the Virginia court improperly failed to consider Currier’s bid for issue preclusion.
“A defendant’s consent to severance does not waive his right to rely on the issue-preclusive effect of an acquittal,” she wrote, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Chief Justice John Roberts joined the Gorsuch opinion in full, as did Justices Clarence Thomas and Samuel Alito.
This story is developing…