Double Jeopardy Developments

The Utah Court of Appeals has weakened double jeopardy protection. What was once meant to protect individuals from government prosecution a second time has become weaker because of a recent decision. My personal philosophy is that we should always have more protection than less, regardless of the actions we take. The government should have the highest burden possible when it comes to taking away any of our freedoms.

The Recent Decision

As individuals, you should care about how much power we give to prosecutors. For instance, in a recent Utah Appellate case, South Jordan City v. Summerhays, 2017 UT App 18, a man is charged with a violation of a protective order. Only District Courts hear class A misdemeanors. The prosecutor, however, messed up and filed it as a Class B misdemeanor in a justice court. He is ultimately convicted at trial and sent to jail for a period of 10 days.

Putting aside why his attorney didn’t make a stink about this earlier (such as when he read the information), they eventually motion the court to dismiss the case for lack of jurisdiction. The motion is granted and the guy is released after 7 days.

The city then re-files the case in District court as a Class A misdemeanor. His attorney then files a motion to dismiss based on the principle of double jeopardy. He shouldn’t have to be subject to a second trial and a second punishment, right?

Wrong. Ultimately this issue goes to the Appellate court and they hold that the double jeopardy clause does not apply in this case. They say the justice court did not have the right to hear this case from the start. There does not appear to be any other Utah decision on point. Ultimately the court relies on North Carolina v. Pearce, 395 US 711 (1969), a US Supreme Court case.

Pearce is convicted a second time and given no credit for time served. He serves years in prison before his conviction is overturned on constitutional grounds. The court denied that he was subject to double jeopardy here, but did state that he should be given credit for the time served.

Why It’s Wrong

The Utah ruling is distinguishable from the Supreme Court case, as the error was prosecutorial, not consitutional. The code makes it clear that protective order violations are a class A misdemeanor. This isn’t a constitutional error, where it was likely debatable or unknown to be an error until after the court ruled on it. This is clearly spelled out in Utah’s Criminal Code. Even a law student intern could have avoided this mistake.

What this ruling does is effectively give prosecutors their own trial run at Class A misdemeanors by misfiling them as Class B’s. As long as the other attorney says nothing, they’ll be able to test their case and see what works and what doesn’t. This constitutes a big waste of time for you as a defendant, and a huge waste of resources.

When the cause of a re-trial is purely on the shoulders of the prosecutor, such as a simple error in filing, the defendant should not have to stand trial again. Let’s hope that this goes to the Supreme Court of Utah, and that they make the right call.

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