Justice Antonin Scalia, the Supreme Court’s most outspoken and combative conservative, is not often described as friendly to criminals.

But in recent years, Scalia has led an unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving.

. . .

Sometimes, Scalia’s insistence on following the “original” Constitution leads to unexpected results. And for him, there are no shades of gray and no halfway measures.

The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.

On the other hand, in a 2009 defendant-friendly SCOTUS decision from which Scalia dissented, Yeager v. U.S., the majority wrote:

The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

While we have decided an exceptionally large number of cases interpreting this provision, see, e.g., United States v. DiFrancesco, 449 U.S. 117, 126-127, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (collecting cases), most of our decisions have found more guidance in the common-law ancestry of the Clause than in its brief text. Thus, for example, while the risk of being fined or imprisoned implicates neither “life” nor “limb,” our early cases held that double jeopardy protection extends to punishments that are not “positively covered by the language of [the] amendment.” Ex parte Lange, 18 Wall. 163, 170, 21 L.Ed. 872 (1874). As we explained, “[i]t is very clearly the spirit of the instrument to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection.” Ibid.

Our cases have recognized that the Clause embodies two vitally important interests. The first is the “deeply ingrained” principle that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and *2366 insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); see Benton v. Maryland, 395 U.S. 784, 795-795, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); DiFrancesco, 449 U.S. at 127-128, 101 S.Ct. 426. The second interest is the preservation of “the finality of judgments.” Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).

The first interest is implicated whenever the State seeks a second trial after its first attempt to obtain a conviction results in a mistrial because the jury has failed to reach a verdict. In these circumstances, however, while the defendant has an interest in avoiding multiple trials, the Clause does not prevent the Government from seeking to reprosecute. Despite the argument’s textual appeal, we have held that the second trial does not place the defendant in jeopardy “twice.” Richardson v. United States, 468 U.S. 317, 323, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); see 3 J. Story, Commentaries on the Constitution § 1781, pp. 659-660 (1833). Instead, a jury’s inability to reach a decision is the kind of “manifest necessity” that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled. See Arizona v. Washington, 434 U.S. 497, 505-506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). The “interest in giving the prosecution one complete opportunity to convict those who have violated its laws” justifies treating the jury’s inability to reach a verdict as a nonevent that does not bar retrial. Washington, 434 U.S. at 509, 98 S.Ct. 824.

Scalia wrote in dissent:

Today’s opinion begins with the proclamation that this Court has “found more guidance in the common-law ancestry of the [Double Jeopardy] Clause than its brief text.” Ante, at 2365. Would that it were so. This case would be easy indeed if our cases had adhered to the Clause’s original meaning. The English common-law pleas of auterfoits acquit and auterfoits convict, on which the Clause was based, barred only repeated “prosecution for the same identical act and crime.” 4 W. Blackstone, Commentaries on the Laws of England 330 (1769) (emphasis added). See also Grady v. Corbin, 495 U.S. 508, 530-535, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (SCALIA, J., dissenting). As described by Sir Matthew Hale, “a man acquitted *2372 for stealing [a] horse” could be later “arraigned and convict[ed] for stealing the saddle, tho both were done at the same time.” 2 Pleas of the Crown 246 (1736). Under the common-law pleas, the jury’s acquittal of Yeager on the fraud counts would have posed no bar to further prosecution for the distinct crimes of insider trading and money laundering.

But that is water over the dam. In Ashe the Court departed from the original meaning of the Double Jeopardy Clause, holding that it precludes successive prosecutions on distinct crimes when facts essential to conviction of the second crime have necessarily been resolved in the defendant’s favor by a verdict of acquittal of the first crime. 397 U.S. at 445-446, 90 S.Ct. 1189.Even if I am to adhere to Ashe on stare decisis grounds, cf. Grady, supra, at 528, 110 S.Ct. 2084 (SCALIA, J., dissenting), today’s holding is an illogical extension of that case. Ashe held only that the Clause sometimes bars successive prosecution of facts found during “a prior proceeding.” 397 U.S. at 444, 90 S.Ct. 1189. But today the Court bars retrial on hung counts after what was not, under this Court’s theory of “continuing jeopardy,” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984), a prior proceeding but simply an earlier stage of the same proceeding.

As an historical matter, the common-law pleas could be invoked only once “there ha[d] been a conviction or an acquittal — after a complete trial.” Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). This Court has extended the protections of the Double Jeopardy Clause by holding that jeopardy attaches earlier: at the time a jury is empanelled and sworn. Id., at 38, 98 S.Ct. 2156. Although one might think that this early attachment would mean that any second trial with a new jury would constitute a second jeopardy, the Court amended its innovation by holding that discharge of a deadlocked jury does not “terminat[e] the original jeopardy,” Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). Under this continuing-jeopardy principle, retrial after a jury has failed to reach a verdict is not a new trial but part of the same proceeding.

Note that Scalia’s observation that “one might think that this early attachment would mean that any second trial with a new jury would constitute a second jeopardy” appears to agree with the majority’s acknowledgement of this “argument’s textual appeal.” Note also the SCOTUS’ explanation in Crist v. Bretz for what Scalia calls “its innovation” (attaching jeopardy at the time a jury is empanelled and sworn):

The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That *36 interest was described in Wade v. Hunter, supra, as a defendant’s “valued right to have his trial completed by a particular tribunal.” 336 U. S., at 689. It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice.Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.

Justice Powell, in his dissenting opinion in Crist v. Bretz, described this common-law rule forbidding discharge of the jury until it had announced a unanimous verdict as “a rule that we well might have come to regard as an aspect of due process if it had not been absorbed in this country by the Double Jeopardy Clause.”

This law review article provides pertinent historical context to the question in the title of this post:

Little wonder, then, that when English juries began to supplant the ordeal in the thirteenth century, a requirement of unanimity quickly took hold. For the jury was replacing a mechanism that, in theory, was perfect. As Pollack and Maitland put it: “Nor must it escape us that the justices are pursuing a course which puts the verdict of the country on a level with the older modes of proof. If a man came clean from the ordeal . . . , the due proof would have been given; no one could have questioned the dictum of Omniscience.” A jury verdict of 7-to-5 would hardly have seemed beyond question.

Moreover, the English jury was viewed as speaking for the community, and the English community of the thirteenth century had but one voice. Indeed, had the jury arisen later, a majority vote might have been sufficient to convict. In France, where Voltaire was instrumental in the institution of juries, a vote of 8-to-4 in a modern trial produces a conviction. But in thirteenth century England, “as yet men had not accepted the dogma that the voice of a majority binds the community.” Whether it was the king, the grand jury, or the criminal jury, each institution had only one voice. Again in the words of Pollock and Maitland, “[T]he voice of the twelve men is deemed to be the voice of the country-side, often the voice of some . . . district which is more than a district, which is a community.” In sum, “the parties to the litigation have ‘put themselves’ upon a certain test. That test is the voice of the country. Just as a corporation can have but one will, so a country can have but one voice.”

. . .

Very little changed over the next four hundred years. In 1791, Americans had so much faith in the wisdom of local criminal juries that the initial failure to require local juries threatened to doom the Constitution before its ultimate passage. Article III required juries in federal criminal cases, to be sure, but the trial could be held, and thus the jury empanelled, in any court in the state. Patrick Henry stated the pervasive feelings at the time:

“Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off. They may call any thing rebellion, and deprive you of a fair trial by an impartial jury of your neighbors. Has not your mother country magnanimously preserved this noble privilege upwards of a thousand years? . . . That country had juries of hundredoers [local citizens] for many generations. And shall America give up that which nothing could induce the English people to relinquish? The idea is abhorrent to my mind. There was a time when we should have spurned it. This gives me comfort – -that as long as I have existence, my neighbors shall protect me. Old as I am, it is probable that I may yet have the appellation of rebel. I trust that I shall see congressional oppression crushed in embryo. As this government stands, I despise and abhor it . . . [I]t takes away the trial by jury in civil cases, and does worse than take it away in criminal cases. It is gone unless you preserve it now.”

The Anti-Federalists believed juries could reach more just outcomes than judges. To reach those outcomes of course, juries must return a verdict. And the evidence from the colonies is that juries always did return a verdict. We know, for example, that no mistrials appeared in New Jersey criminal cases from 1749-57. This is not surprising, of course, because mistrials were not a recognized outcome in Blackstone’s Commentaries.

If an eighteenth century English jury did not reach a unanimous verdict before the judge had to leave for the next town on his circuit, he could “carry them round the circuit from town to town in a cart.” We suspect not many juries would fail to reach a unanimous verdict if the alternative was to be kept together and transported by cart from town to town. Occasionally, as we will see, a brave jury would refuse to reach a verdict, but these were outliers in the common law system.

The first report of a mistrial for failure to reach a verdict in an American court was 1807.

It appears, therefore, that the real judicial “innovation” in the law that occurred after the establishment of the Constitution was not in holding that jeopardy attached prior to the jury’s verdict, but in relaxing the rule forbidding (as a matter of Due Process if not the Double Jeopardy Clause) the discharge of the jury until it reached a verdict. This innovation might very well have been required by the Due Process rights of the jurors themselves, but it nevertheless could not justify relaxing the requirements of the Double Jeopardy Clause, the text of which, as both the majority and Scalia’s dissent in Yeager appear to acknowledge, seems to mean that “any second trial with a new jury would constitute a second jeopardy.”

What recently changed my mind about these cases is the Indiana Supreme Court’s decision in Tyrus Coleman v. State (2011), and the utter failure of these cases to do Mr. Coleman (whom I represented at trial) any good. Now when I read Yeager the only significant thing about the case seems to me to be the fact that the defendant, Mr. Yeager, was an Enron executive.

The Indiana Supreme Court’s decision in Mr. Coleman’s case came less than a week after that court rendered its infamous decision in Barnes, which purports to abrogate the right of the people to reasonably resist unlawful police entry into their homes. I lament the fact that Barnes has gotten all the attention and public vilification, while the court’s disposal of Coleman has gotten none, even though both cases equally exude the pernicious implication that only police officers are entitled to use force to defend themselves or others and that the only allowable recourse of a man facing armed and dangerous men who are in the act of invading his property is to call the police.

In the wake of the political fallout over Barnes the Indiana Attorney General has put on his white hat and joined the chorus condemning Barnes:

I support a rehearing of the case to allow for a more narrow ruling that would continue to recognize the individual right of reasonable resistance to unlawful entry. In our brief and argument to the Indiana Supreme Court last fall, my office did not advocate for the type of ruling the Court issued last week.

Here’s my response to that, borrowing from Eric Turkewitz: “Go shit in your white hat and pull it down over your ears.” Your office didn’t have to petition the Indiana Supreme Court for transfer after the Indiana Court of Appeals rendered its eminently reasonable decision that would have freed Tyrus Coleman — an innocent man — on the grounds of collateral estoppel, but it did.

And speaking of going above and beyond the call of duty, here are the principal considerations which normally govern the Indiana Supreme Court’s decision whether to grant transfer:

(1)     Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.

(2)    Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.

(3)    Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.

(4)    Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.

(5)    Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.

(6)    Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.

You will search the Indiana Supreme Court’s published opinion in Coleman in vain for any new explication of the law of collateral estoppel, any explanation of how the Indiana Court of Appeals’ decision had “departed from accepted law or practice” (let alone “significantly”), or any hint of the above-listed “considerations” which normally govern whether the Indiana Supreme Court grants transfer. Even though the first jury in Coleman’s case had acquitted him of murder and hung on the attempted murder charge (which in a just world and a just legal system would establish reasonable doubt as to Mr. Coleman’s guilt on both charges), and even though there was nothing contrary to established law in the Court of Appeals’ decision, the “Justices” on the Indiana Supreme Court chose to condemn Mr. Coleman to 45 years in prison for doing something that I believe with every fiber of my being was completely justified.

I was convicted of 2422(b) in 2002 by a jury in Los Angeles, CA (9th Circuit). My first jury was deadlocked and a mistrial was declared. The second jury was also deadlocked but after repeated instruction from the judge to further deliberate they eventually convicted.

. . .

At sentencing I was given 60 months. . . . My appeals have been published on the internet. If you google my name, not only do the appeals come up, but sites dedicated to indiscriminately outing, stigmatizing and ostracizing all “sex offenders” bring up my picture. . . .

I have lost jobs due to people in my offices and my industry googling my name. I have been victimized and forced to again defend myself by a former employer that exploited my registration requirements in order to intimidate and prevent me from receiving unemployment benefits. I have lost apartments and I cannot find suitable employment due to our society’s insistence on background checks for everything. I am forced to register not only annually on or around my birthday, but also every time I change my address, occupation or vehicle. For a man that is trying to work freelance on movies many times in different states, registration has all but killed my career. I have lost friends. I have lost family. I have lost relationships. I have lost respect. I have lost the presumption of innocence (although, in this type of incendiary case I don’t believe any defendant is actually afforded the presumption of innocence). I have lost MY NAME. I don’t know what I have not lost other than the uncompromising and unconditional love of a handful of friends and family.

I can only say that I am lucky I was not arrested more recently as taking a plea bargain under the newly imposed Federal Sentencing Guidelines would have given me something as severe and unjust as ten years, not to mention what kind of a Draconian sentence I would receive if I chose to go to trial. . . .

Brought out into the light, this law is intrinsically unconstitutional and it is only in the shadows of politics and policy does it survive. If guilty, a man must be punished, but then be given the chance to redeem himself. If innocent, a man must be allowed to defend himself against a law that is reasonable and fair. And lastly, without fear of going to trial and receiving a sentence that breaks his soul and in effect forces him to plead guilty in order to salvage what is left of his time not behind bars, an innocent man must be allowed his day in court.

I was not guilty. I am not guilty. At trial and for the rest of my life, I will forever say, “I am innocent”.

My name is Sean Messano.

Read the whole thing.

As far as I’m concerned, his first jury’s inability to find Mr. Messano guilty beyond a reasonable doubt established his innocence.

This is precisely the kind of post I meant when I recently wrote:

I admire but can’t hold a candle to those bloggers like Jeff Gamso and many others who regularly offer substantive, insightful and practical posts on the criminal law (i.e., the law criminal defense attorneys are actually constrained to deal with, rather than the Law I like to occupy myself with). Don’t get me wrong. Some of the happiest times in my life have been when I’ve had the opportunity to sink my teeth into an actual legal controversy involving statutes and case law and such, and IMHO I think I’m pretty good at it. I have posted a few things of a more practical nature, such as here, here, here, here, here, here, and here. But it generally takes an actual client with an actual problem (or a law review deadline) to get those juices flowing for me, and I’ve taken the consensus of the practical blawgosphere to heart and tried to be circumspect about writing about my own cases, at least until after they’re over. I imagine that what those other bloggers have that I don’t is a lifetime of experience in the criminal law, giving them a broader context in which statutes and case law and such are intrinsically interesting even when they don’t touch on a current client’s problems. They don’t have to do a lot of research to write a post about where a new case fits in the context because they already have a pretty good idea. Maybe someday I’ll get to that level. In the meantime, I learn from and appreciate them.

Turns out that in this instance the subject of Jeff’s post and of the particular Iowa Supreme Court decision he highlights and praises — namely, the question of the validity of an “inconsistent verdict” — is something I know something about, because it’s related to a doctrine of great importance to a former client who is innocent and whose saga and jeopardy continues on direct appeal — namely, the doctrine of “collateral estoppel,” or “issue-preclusion.” Depending on the ultimate outcome of that appellate process for my innocent former client, you might hear a lot from me on the subject of issue-preclusion, or you might not hear from me at all for some time.

Unfortunately, when it comes to the validity of inconsistent verdicts our own Indiana Supreme Court in Beattie has recently joined the U.S. Supreme Court and most other state supreme courts in playing what the Iowa Supreme Court calls “legal horseshoes.” Fortunately, the U.S. Supreme Court in Yeager has recently made clear that what the Iowa Supreme Court calls this “shrug of the judicial shoulders” in response to inconsistent verdicts does not affect the applicability of issue-preclusion:

In Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), the Court, speaking through Justice Holmes, held that a logical inconsistency between a guilty verdict and a verdict of acquittal does not impugn the validity of either verdict. The question presented in this case is whether an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts affects the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment. We hold that it does not.