Saturday, April 14, 2007

Case o' The Week: McKeown Makes Like Trebek, Gives Big Jeopardy Win --- Brazzel

Jeopardy attaches after an implied acquittal, preventing retrial on a lesser, writes Judge McKeown in the great Brazzel habeas decision. Brazzel v. Washington, __ F.3d __, No. 05-36145, Slip. Op. at 4217 (9th Cir. April 12, 2007), decision available here. A dense read, but worth it for its explanation of implied acquittals, mistrials and Double Jeopardy.

Players: Admirable win by Tacoma AFPD Russell Leonard; written by Judge McKeown.

Facts: Brazzel was charged with attempted murder or, in the alternative, first degree assault, and two counts of second degree assault. Id. at 4221. The first jury convicted him of first degree assault on Count 1, and on both second degree counts. The jury remained silent on the attempted murder charge, leaving the verdict form blank. Id. Brazzel was sentenced to 456 months, but won on a new trial on appeal. Id. at 4222. On retrial, he faced the same alternative attempted murder charge and moved to dismiss on Double Jeopardy grounds. Id. That was denied, he was convicted again of the same counts, and again the jury left the jury form blank on the attempted murder charge. Id. at 4223. He was sentenced to 240 months.

Issue(s): “In this . . . habeas appeal . . . Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense.” Id. at 4220.

Held: “Where, as here, the defendant’s conviction is overturned due to a jury instruction error, the government may retry the defendant as to the charge of conviction, but not for other charges of which the first jury impliedly or expressly acquitted him.” Id. at 4225-26 (emphasis added). “In contrast to an implied acquittal, retrial is permitted where there is a mistrial declared due to the ‘manifest necessity’ presented by a hung jury.” Id. at 4226. [F]or double jeopardy to attach, there is no explicit requirement that the charged offenses be greater and lesser included offenses . . . . The defining fact is that it is a distinct and different offense.” Id. at 4227 (quotations omitted). “The state court did not clearly err when it treated the first jury’s silence as an implied acquittal.” Id. at 4229. “Brazzel was twice put in jeopardy for attempted murder. The circumstance of a retrial on the murder charge should not have been characterized as moot.” Id. at 4234. “Reversed . . . and remanded to the state to determine what non-jeopardy barred retrial, if any, is to be had.” Id. at 4235.

Of Note: The rule of Brazzel is this: unless it is very clear that the jury has hung, a lack of a conviction is an implied acquittal and jeopardy attaches. Even better, if there’s an implied acquittal on a greater offense it can bar retrial of the lesser (though the law is pretty complicated on this, and it was an unusual fact pattern here that produced this result).

How to Use: Brazzel is an interesting case to add to a trial binder, particularly when there are complicated jury instructions and verdict forms. It could also add a twist to strategies about Allen charges (the “dynamite” charge for a deadlocked jury). While it’s hard to puzzle through all the ramifications when faced with an unclear verdict, at least in this case the jury’s ambiguity about a greater charge worked in the defendant’s favor – it may mean that he won’t face a retrial on the lesser, first degree assault allegation. Clarity, in this case, probably wouldn’t have helped the defendant – if the jury clearly said that it had hung on the attempted murder charge (instead of leaving the verdict form blank), Brazzel would have lost this habeas.

For Further Reading: We’ve touted the opinions of Judge McKeown here before. See blog here. She is the only federal judge to attend both the Universities of Wyoming and Madrid (at least, that’s a safe bet). See article here. Of course, even the best judges have bad days – McKeown recently authored Hector, which held that failure to serve a search warrant didn’t trigger the Fourth Amendment exclusionary rule. See United States v. Hector, 474 F.3d 1150 (9th Cir. 2007).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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