Academic journal article Albany Law Review

Double Jeopardy

Academic journal article Albany Law Review

Double Jeopardy

Article excerpt


The Fifth Amendment to the U.S. Constitution declares that "[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life or limb." (1) The rule is simply stated and somewhat intuitive: a person should not be tried twice for the same crime. The lineage of the rule underscores its obviousness: the rule dates back to the twelfth century. (2) Despite its apparent simplicity, application of the rule has not been simple. As with many "rules of law," the devil is in the details. The underlying notion of double jeopardy requires, among other things, an examination of what it means to be placed "in jeopardy." (3) Certainly, it seems self-evident that a person charged with a crime who has gone to trial, faced all the resources of the government, and been acquitted of that crime by a jury of his peers, should rest easy that he or she can never be prosecuted again for that crime. But what of the defendant who has been charged with various crimes, some in the alternative, and was convicted of some crimes, but not others?

This article will address the question of what happens in New York when two counts are charged in the alternative--specifically, intentional murder and depraved indifference murder--and the jury convicts on one of the counts. In a recent decision from the New York Court of Appeals, People v. Gause, (4) the court held that the defendant's conviction on the depraved indifference murder count amounted to an implied acquittal on the intentional murder count for double jeopardy purposes, and thus, despite overwhelming evidence of the defendant's participation in the crime, defendant was allowed to go free. (5) Unfortunately, this issue appears in several other cases in New York, arising from a combination of the evolving definition of depraved indifference murder and the proclivity of prosecutors to charge a defendant with both intentional murder and depraved indifference murder.


Around one o'clock in the morning on January 26, 2002, in Rochester, New York, Timothy Lundy fired two or three bullets at Whitney Morris. (6) A witness testified that after Morris fell to the ground, Derrick Gause repeatedly struck Morris in the head with a metal pipe. (7) Morris sustained three gunshot wounds to his chest, face and neck, and right arm--which could have been caused by either two or three projectiles--and various blunt trauma injuries to his face and head. (8) The police stopped Lundy's vehicle shortly after the incident. (9) Gause was driving the vehicle alone, and there was a blood-stained metal pipe on the floor near the front passenger seat. (10) Subsequent DNA evidence confirmed that it was Morris's blood on the pipe. (11) Gause admitted to the police that the car belonged to Lundy, and that he was at the scene of the crime; however, he denied any participation in the crime. (12)

Gause was charged with two counts of murder (13)--namely, intentional murder and depraved indifference murder. (14) The People presented proof as described above, and after the People rested, defense counsel made a general motion "to dismiss [both counts of] the indictment ... on grounds that the conviction was not properly entered, as the People had failed to make a prima facie case with respect to intent to kill and causation." (15) Monroe County Court denied the motion (16) and the defendant presented alibi witnesses.

Defense counsel did not renew his motion for a trial order of dismissal. (17) No lesser included offenses were presented to the jury for consideration. (18) The court instructed the jury:

   In your deliberations, you may consider the charges in any order
   you wish, thus you may start with either Count 1 or Count 2.
   However, regardless of which count you consider first, if you
   should find the defendant guilty of such, you will stop right there
   and you will not go on to consider the other count. … 
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