Double Jeopardy: History Repeating Itself
In my first blog post, I noted that what I both loved and hated about the law was the fact that it is always changing. A perfect example: last year the Supreme Court of Indiana radically changed double jeopardy law. Practitioners had to throw out most of what we knew and learn an entirely new standard for evaluating double jeopardy claims.
The Supreme Court’s motive behind the change: our double jeopardy jurisprudence in Indiana had become confusing and contradictory after the Supreme Court’s decision in Richardson v. State. In an attempt to clarify things, our Supreme Court tossed the old analysis and created a new analysis with a step-by-step standard for determining whether punishment for two or more offenses constitutes double jeopardy.
While it would take hours to explain all this in any detail, multiple punishment claims fall into two categories: (1) when a single act or transaction violates multiple statutes that have common elements among them; and (2) when a single act or transaction violates one statute but involves multiple injuries. Our Supreme Court’s decisions in Wadle v. State and Powell v. State addressed each of these categories and provided practitioners with a step-by-step analysis to determine whether multiple punishments in each of the two categories amounts to double jeopardy.
After the decisions were handed down in August 2020, the Court of Appeals of Indiana was tasked with applying the new analysis. Initially, some predictable issues arose. Was the new analysis retroactive? What about Indiana common law on double jeopardy? How does it factor into the new test? Those questions still remain.
No one disputes that double jeopardy law has always been confounding. Creating an easy and workable analysis probably felt to the Court like a fool’s errand. But once I really studied the new framework, I could see that, when properly applied, it could produce a more concise body of case law. Yes, there would still be some gray areas. But practically every area of law has a little gray in it :)
The struggle for me has been that for the 17 years I have been a lawyer, the Richardson test was THE test. Everything I know about double jeopardy law was shaped by Richardson and its progeny. It has been a difficult pill to swallow that some situations that would have been a clear double jeopardy violation under Richardson may not be a violation under the new framework.
Some judges on the Court of Appeals may be sharing in my struggle. Just yesterday the Court of Appeals issued Demby v. State. Twice in the opinion Judge Tavitas noted that the framework does not fit every situation involving substantive double jeopardy, and that every case does not fit neatly in the Wadle bucket or the Powell bucket. Consequently, it seems at least some of the judges on the Court of Appeals would rather pull some guiding principles from the Wadle/Powell framework to apply to those cases that the Court of Appeals believes does not squarely fit in either bucket.
The concern with “guiding principles”? If not handled with care, they lead to…confusion and contradiction.