Thoughts on Yeager: Role of Appellate Judges, Special Verdict Forms, and the Significance of a Hung Jury

enronLast week, in Yeager v. United States, the Supreme Court resolved a longstanding tension between two aspects of Double Jeopardy law: the collateral estoppel doctrine, which precludes relitigation of issues previously found in the defendant’s favor, and the hung jury rule, which permits relitigation of charges as to which a jury cannot reach agreement.

Yeager, an Enron employee, was charged with multiple counts of fraud and insider trading.  The counts were factually linked: Yeager’s alleged fraud was that he knowingly participated in making false statements to investors regarding the performance of a new Enron project, while his alleged insider information was his knowledge that the project was not actually going so well.  At trial, the jury acquitted Yeager of fraud, but hung on insider trading.  A long line of Supreme Court cases permits retrial when the jury hangs, and the government indeed sought to take advantage of this Double Jeopardy exception by recharging Yeager with insider trading.

Yeager nonetheless presented a Double Jeopardy defense, invoking the collateral estoppel rule of Ashe v. Swenson.  In Yeager’s view, the first jury necessarily determined that the government failed to prove he knew the falsity of the statements made to investors.  If he did not know about the gap between what investors were told and the actual state of affairs, then the government’s insider trading theory would collapse.  In the government’s view, however, the first jury might have acquitted instead based on doubt about whether Yeager actually participated in making the false statements; uncertainty about what the jury actually decided in its acquittal would preclude application of Ashe.  The district court agreed with the government’s view, but the Fifth Circuit reversed.  The Supreme Court then affirmed, holding that application of the collateral estoppel doctrine was not affected by the seeming inconsistency in the jury’s treatment of the fraud and insider trading counts.

Besides its holding, three aspects of Yeager strike me as worthy of note. 

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Bork Reconsidered, Part II

3601327017_cf29db46c31In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism.  My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation.  In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted).  Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.  Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.  If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.

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Seventh Circuit Case of the Week: The Jude Saga Continues

seventh-circuit1For a resident of Milwaukee, there can be no question about the marquee Seventh Circuit case last week: the court decided the appeals of three of the defendants convicted in the notorious Frank Jude beating.  In United States v. Bartlett, the court (per Chief Judge Easterbrook) affirmed the convictions of all three defendants and the sentences of two.  However, the Seventh Circuit also vacated the sentence of Jon Bartlett, who will now have to be resentenced in the lower court.

As everyone living in the Milwaukee area knows, Bartlett and his codefendants were police officers convicted of civil rights violations for the savage beating suffered by Jude, a biracial man.  For many, the Jude case, which received intense local media coverage, was emblematic of the state of police-community relations in inner-city Milwaukee. 

Bartlett’s “win” on appeal resulted from a discrepancy in his sentencing. 

Continue ReadingSeventh Circuit Case of the Week: The Jude Saga Continues