« A high-profile case providing a Canadian perspective on white-collar sentencing | Main | Of interesting around the blogosphere »

July 6, 2009

Will bad facts doom a double jeopardy claim brought to SCOTUS in capital case?

This new article in the Washington Post, headlined "Va. Inmate's Lawyers Argue Double Jeopardy," raises the age-old question of whether bad facts often make for bad law.  Here are the basic details (which read almost as if they created by a screen-writer in Hollywood):

Lawyers for a Virginia inmate scheduled to die next week for killing a 16-year-old -- then bragging about it to prosecutors when he thought he couldn't face the death penalty -- are asking the U.S. Supreme Court to stop the execution.

Paul Warner Powell's lawyers argue that he was unconstitutionally convicted twice for the 1999 murder and attempted rape of Stacie Reed.   Powell, 31, was convicted in 2000 of killing Reed and raping and trying to kill her 14-year-old relative. He was sentenced to die for Reed's murder.

The Virginia Supreme Court overturned Powell's capital conviction, saying that Prince William County prosecutors failed to prove Powell tried to rob or rape Reed. In order to face capital punishment, defendants must commit other crimes against the victim or meet other aggravating circumstances.

Thinking he could no longer face the death penalty, Powell wrote a profanity-laced, taunting letter to prosecutors offering graphic detail of how he tried to rape Reed before he stabbed her three times and stomped on her throat until she quit breathing. "Do you just hate yourself for being so stupid and for (messing) up and saving me?" he wrote to Commonwealth's Attorney Paul Ebert in 2001.

Ebert threw out Powell's earlier indictment and charged him with killing and attempting to rape Reed. Powell was convicted again in 2003 and given the death penalty.

Powell's lawyers asked the U.S. Supreme Court to block the execution until it can decide whether his second capital murder charge violated the Fifth Amendment's protection against being tried twice for the same offense.  They argue that convicting Powell the second time "sets a dangerous precedent in which prosecutors now may pursue multiple attempts to secure a sentence of death."

State and federal courts have repeatedly rejected Powell's double jeopardy argument, saying that the original charge was different because he was not accused of attempting to rape Reed.

A divided federal appeals court panel once again denied Powell's claim in April, with Justice Roger L. Gregory dissenting.  Gregory called Powell's crime "atrocious" but said his second conviction amounted to double jeopardy.

"Given the explicit details revealed by Powell in his letter to the Commonwealth's attorney, one understands the strong inclination to prosecute Powell for those heinous acts," he wrote. "Yet, it is in these very cases that we must be most vigilant in protecting our long-standing constitutional guarantees."

Ebert said he didn't think the court would stop the execution because Powell was tried for two separate crimes.  "The two things have entirely different elements, entirely different facts, entirely different victims," he said. "It's not double jeopardy."

The Fourth Circuit's split decision in Powell v. Kelly, No. 08-3 (4th Cir. April 15, 2009), can be accessed at this link.

July 6, 2009 at 06:17 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Will bad facts doom a double jeopardy claim brought to SCOTUS in capital case?:

» Blog Scan from Crime and Consequences Blog
SCOTUScast on Cone v. Bell: The Federalist Society has posted Kent's commentary on the Supreme Court's decision in Cone v. Bell (07-1114). Kent summarizes the case history, and then delves into the Court's decision. As Kent says, "In terms of... [Read More]

Tracked on Jul 7, 2009 5:54:44 PM


Suppose someone (say that guy in PA) killed more than one police officer. Could he be tried for each murder one by one? To increase the odds of the death penalty?

Posted by: . | Jul 6, 2009 6:34:19 PM

AEDPA, I think, presents a big problem for Mr. Powell.

Posted by: federalist | Jul 6, 2009 6:43:48 PM

6:34:19 pm --

"Suppose someone (say that guy in PA) killed more than one police officer. Could he be tried for each murder one by one? To increase the odds of the death penalty?"

He could be tried for separate murders, not to increase the odds of the death penalty, but because a sane society does not let criminals shot one policeman and then get a freebie on all the rest he mows down.

Posted by: Bill Otis | Jul 6, 2009 6:54:28 PM

I agree with Bill but I also agree with the dissent in this case. It is double jeopardy. It's really just the logical consequence of buying the "different sovereign" nonsense. Next thing ya know the prosecutors will be claiming it was a different crime because he admitted to sneezing on the underage victim and that's the additional element of child abuse.

Posted by: Daniel | Jul 6, 2009 8:01:35 PM

This is lawyer sophistry. Garbage. It is even in bad faith, since it has nothing to do with the truth, but only with abolition.

Posted by: Supremacy Claus | Jul 6, 2009 9:19:54 PM

Daniel --

Amazingly, I agree with you that the case is problematic on the Double Jeopardy question. I have no problem with the dual sovereignty doctrine (nor does any member of the Supreme Court so far as I know), but I do not understand that to be implicated here. What is implicated -- the factual distinctions between the two offenses offered by the government -- seem to be a slender reed upon which to rest government's claim of right to try the defendant again.

Posted by: Bill Otis | Jul 7, 2009 6:43:59 AM

Agreed, neither the heinous facts of the case nor the disgusting taunting really have any bearing on the DJ question. Even assuming that the defendant was telling the absolute truth in his post-appeal statements (rather than just posturing to antagonize the prosecution, which is, of course, possible), the fact that you are actually guilty of the crime has never been considered an exception to the DJ Clause. Such an exception would quickly swallow the rule.

Moreover, it's not like this guy "got away with it" and is walking the streets. He almost certainly will be leaving prison in a box. (I know some think that he got away with something by avoiding the death penalty, but even they would have to admit that the gap between execution and an (effective) LWOP sentence is much, much greater than the gap between LWOP and no punishment at all.)

Finally, I'm a bit concerned by the idea of serial capital prosecutions under different "special circumstances." Many states have a proliferation of such circumstances. If someone approaches a uniformed state officer who happens to be in a car with a child under 12, pistol whips the child, shoots the officer, and takes his wallet, can the State charge and try him serially for capital murder 4 times? (murder in a car, murder during commission of child abuse, murder of uniformed officer, murder during robbery?)

Posted by: Observer | Jul 7, 2009 10:09:26 AM

Guys, AEDPA is a problem here.

Posted by: federalist | Jul 7, 2009 11:56:47 AM

Bill. I agree with your post. My point was not that the mythology of dual sovereignty is directly implicated in this case but rather that the "slim reed" you talk about seems to me it's logical *extension*.

I recognize that one can accept dual sovereignty and not be willing to extend it so far as this case wants to do. But my own opinion is that the whole line of logic needs to be tossed in the trash. The focus of the clause is on the *offense* not on the person charging the crime. The idea that the offense is different because the person charging the crime is different is as silly as the notion that the offense is different because the murder was committed by knife rather than by gun. Both are equally ludicrous.

Posted by: Daniel | Jul 7, 2009 12:29:36 PM

federalist: honestly, has there ever been an AEDPA case where you thought the burden was satisfied? You seem to place a de facto insurmountable burden on such cases, which of course Congress did not intend.

Granted, Congress did intend the burden to be high. Judge Gregory's dissent begins by stating that AEDPA creates a "nearly insurmountable burden." Nearly is the key word.

It seems clear to me that there is a DJ problem here, and holding otherwise could easily be an unreasonable application of DJ law.

Posted by: DEJ | Jul 7, 2009 12:42:15 PM

There is a DJ issue--and it seems to have been resolved reasonably. We'll see.

Posted by: federalist | Jul 7, 2009 2:17:38 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB