Fifth Amendment - the Covert Narrowing of Double Jeopardy Precedent: The Supreme Court's Real Reason for Hearing Schiro V. Farley

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I. INTRODUCTION

In Schiro v. Farley,(1) the Supreme Court denied Thomas Schiro's claim that his death sentence violated both the Double Jeopardy Clause and principles of collateral estoppel. Relying on Stroud v. United States,(2) the Court reasoned that because a second sentencing proceeding is ordinarily constitutional following a retrial, an original sentencing hearing does not violate the Double Jeopardy Clause.(3) Further, Justice O'Connor stated that Schiro failed to meet his burden of showing that the issue upon which he desired collateral estoppel effect had been decided in his favor.(4)

This Note argues that, although the majority reached the correct result, the Court's true motivation for granting certiorari was to adjust the scope of Bullington v. Missouri.(5) By ignoring Bullington's focus on capital sentencing procedure and instead referring to it as a "narrow exception," Justice O'Connor removed the effective use of Bullington as precedent without having to explicitly overrule the case. The fact that Justice O'Connor could easily have distinguished the two cases on a factual basis, without adjusting the scope of Bullington, brings this point to bear.

This Note further argues that, with regard to the issue of collateral estoppel, Justice Stevens' dissent was a misstatement of the law. The majority correctly focused on the burden of proof detailed in Ashe v. Swenson(6) and rightly found that Schiro failed to meet this burden.

II. BACKGROUND

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."(7) The United States Supreme Court has viewed the Clause as having three distinct purposes: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."(8) The Court has determined, however, that among these concerns, the controlling constitutional principle is the need to protect against successive prosecutions.(9) In addressing this issue, the Court has struggled to establish a rule as to when a sentencing hearing is itself a successive prosecution.(10) Implicit within this quandary is the issue of jury action or inaction on a given matter, and what constitutes an acquittal for purposes of double jeopardy and collateral estoppel analysis--specifically, when jury silence on a given charge is tantamount to an acquittal for double jeopardy purposes.

A. SENTENCING AS A SUCCESSIVE PROSECUTION

In Stroud v. United States,(11) the Court held that where a court grants a new trial due to assignment of error, a defendant may not claim double jeopardy based upon the imposition of a harsher sentence at retrial.(12) Stroud was indicted for first degree murder after killing a prison guard at Leavenworth, Kansas where he was incarcerated.(13) At his first trial, the jury found Stroud guilty and sentenced him to death.(14) After an admission of error by the prosecuting attorney, the court reversed the verdict and sentence, and the State retried Stroud.(15) At his second trial, the jury again found Stroud guilty, but chose not to impose the death sentence.(16) Upon writ of error to the United States Supreme Court, the Solicitor General of the United States confessed error and the case was again reversed and remanded.(17) At his third trial, the jury again found Stroud guilty of first degree murder but made no recommendation as to capital punishment.(18) The trial court imposed the death sentence.(19) Stroud appealed to the Supreme Court claiming a violation of the Double Jeopardy Clause based on the jury's decision in the second trial not to sentence him to death.(20)

Writing for a unanimous Court, Justice Jay found no merit in Stroud's claim.(21) Justice Jay reasoned that, although the second jury did indeed provide guilt "without capital punishment," all three of the convictions established guilt for first degree murder. …