No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Soliciting a Criminal Defense Case

Let it be known, I would like to defend THIS GUY, if he is indicted (which I doubt will happen in Texas).

Searching for Evidence or Community Caretaking?

U.S. v. McKinnon, 2012 U.S. App. LEXIS 7806, May 8, 2012

An officer stopped the car Appellant was driving because it had an expired registration sticker.  The officer arrested Appellant after he could not produce a valid driver’s license.  Based on the Houston Police Department’s (HPD) towing policy, the officer ordered the car to be towed.  During the “inventory search,” the officer found a handgun under the driver’s seat.  At trial, Appellant moved to suppress the handgun as being the fruit on an unlawful search in violation of the Fourth Amendment, arguing that:

[the officer’s] inventory search violated his Fourth Amendment rights because (1) the inventory search was merely a pretext for searching for evidence related to the burglaries that had recently taken place in the neighborhood where McKinnon was stopped; and (2) the inventory search was conducted pursuant to a policy that provided HPD officers with impermissible discretion in deciding when to tow a vehicle.

The trial court denied the motion.

The Supreme Court has recognized that the police may seize vehicles without a warrant in furtherance of their “community caretaking” function.  This usually occurs when officers impound damaged or disabled vehicles or vehicles that violate parking ordinances or impede the flow of traffic.  As long as an officer’s decision to impound a vehicle for community caretaking purposes is reasonable, it will not violate the Fourth Amendment. 

Here, the court held that the officer’s decision to have the car towed was reasonable under the Fourth Amendment.  It was undisputed that the neighborhood in which the stop occurred had experienced a series of burglaries.  Although these were house burglaries, there was nothing to suggest that the vehicle would not have been stolen or vandalized if left parked and locked at the scene.  By impounding the car, the officer ensured that it was not left on a public street where it could have become a nuisance or where it could have been stolen or damaged. 

In addition, while one of the passengers possessed a valid driver’s license, the car’s registration sticker was expired, so it could not have been lawfully driven away from the scene.  Finally, the HPD tow policy provides for the towing of vehicles when the owner is not able to designate a tow operator to remove the vehicle and no other authorized person is present.  The registered owner of the vehicle was not present to designate a tow operator and there was nothing to suggest that she had authorized either of the two passengers, who were present, to operate her car.

The Court further held that HPD’s inventory search policy was constitutional.  By its clear terms, the policy is consistent with preserving the property of the vehicle’s owner while ensuring that the police protect themselves against claims or disputes over lost or stolen property and protecting the police from danger.

Community caretaking...Hmmm.  Seems like alot of things could fit under that title.  I suppose that is the point.

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.