Damn Lies and Double Jeopardy

The Supreme Court comes back into session Tuesday. On that day, the Justices will earn their salaries (and then some) by considering the following questions:

  • Whether Section 8(b) of Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties.
  • Whether, under 28 U.S.C. § 1920(6), costs incurred in translating written documents are “compensation of interpreters,” which under the statute are awarded to the prevailing party in a federal lawsuit.

Reader, these questions are important, but forgive me if I draw the veil of modesty over those Tuesday cases in favor of Wednesday’s, which are important too—and pose more broadly interesting puzzles.

The first, Blueford v. Arkansas, is a double-jeopardy case. The Fifth Amendment provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.” The popular view of the Jeopardy Clause was explained by Ashley Judd in the 1999 film Double Jeopardy. Bruce Greenwood, her husband, has faked his own death and framed Judd for it. Released from prison, she tracks him down, points a pistol at his heart, and calmly tells him, “I could shoot you in the middle of Mardi Gras, and they can't touch me.”

Alas, disappointingly few actual double-jeopardy cases concern a defendant who can't be tried for two different murders of the same victim. The guarantee actually concerns defendants who are tried twice for the same crimeThe Fifth Amendment rule seems clear from a distance—when a trial begins, jeopardy “attaches,” and an acquitted defendant can’t be tried again.  The tough issues arise where a first trial goes awry after producing a result short of acquittal, but the state seeks to prosecute again. A hung jury can usually lead to a second trial, but sometimes juries do strange things that seem like acquittals but aren’t quite.

Alex Blueford was tried for allegedly causing the death of Matthew McFadden, his girlfriend’s 20-month-old son. He said it was an accident; police concluded it was intentional killing. The state tried Blueford for capital murder (minimum penalty: life without parole). But under Arkansas law, that charge rendered him liable the “lesser included offenses” of (1) first-degree murder (ten-year minimum); (2) manslaughter (six-year minimum); and (3) negligent homicide (five-year minimum). Each greater crime requires proof of some element not required for the “lesser included” offense—a person committing murder automatically has committed manslaughter, for example, but not vice-versa.

Following Arkansas law, the judge told the jury that they must consider the four charges in descending order. “Before you can consider a lesser included [offense],” the judge told them, “you must first, all 12, vote that this man is not guilty of capital murder before you can ever move on.” Each step down the ladder had to be preceded by a unanimous “not guilty” vote on the higher rung, he explained.

After more than four hours, the jury forewoman reported that the jury was deadlocked. The judge asked their vote on capital murder. “That was unanimous against that,” the forewoman replied. “No.” 

“Okay,” asked the judge, “on murder in the first degree?” Again, she reported, “that was unanimous against that.” The jury had split on manslaughter and, obeying the judge’s instructions, had not moved down to negligent homicide. Blueford’s lawyer asked for a formal acquittal on the top two counts, but the judge refused and eventually declared a mistrial.

Blueford says the unanimous vote constituted the substance of an acquittal. Arkansas says that no judgment was entered; no judgment, no jeopardy. The state courts authorized retrial on capital murder.

The question here is how formalistic this Court wants to be. Err too far on one side and defendants will be claiming jeopardy from chance remarks by jurors; err too far on the other side and the prosecution will begin what’s called “acquittal avoidance,” jumping to a mistrial when they sense their case is going badly. The majority of this Court has shown a great deal of interest in the “finality” of judgments and somewhat less in the rights of criminal defendants, but the common-law history of double jeopardy may appeal to Justice Antonin Scalia, who enjoys parsing 18th-century cases to interpret the Bill of Rights.

The second case, which I have written about before, is United States v. Alvarez, known as the “Stolen Valor” case. In this case, a compulsive liar unwisely got himself elected to a local government body in California. Meetings of these bodies are taped; when he introduced himself as a recipient of the Congressional Medal of Honor, an irate member of the public (who had heard Alvarez boast of his medals, as well as his nonexistent career with the NHL Detroit Red Wings, on an earlier occasion) brought the tape to the attention of the FBI. Alvarez was convicted of violating the Stolen Valor Act, which makes it a federal crime to “ falsely represent[] ... verbally or in writing" that the speaker has been awarded "any decoration or medal authorized by Congress for the Armed Forces of the United States..." Violation can bring six months in jail.

Alvarez’s conviction was set aside by the Ninth Circuit, which held that the government cannot make simple lying a crime without a showing of some concrete harm—defamation, say, or fraud. Several conservative judges bitterly dissented, arguing that the First Amendment does not ever protect any deliberate false statements of fact, “harmful” or not. Judge Alex Kozinski—no liberal himself—responded with a “Shouts and Murmurs”-style topology of lies that ordinary people tell every day. As it usually must when a lower court strikes down a federal statute, the Supreme Court granted review.

Since that grant of review, the Tenth Circuit has weighed in on the issue in another case, United States v. Strandlof. Many appeals courts would delay a decision like that until the Supreme Court decides Alvarez, but two judges of the Tenth Circuit panel were eager to make their contribution. In an opinion by Judge Timothy M. Tymkovitch, they suggest a general rule: The First Amendment protects no knowing falsehoods, and laws forbidding are subject only to a new standard called “breathing space review,” which it enunciated thus: “A restriction on knowingly false factual statements is constitutional so long as it has some limiting characteristic that prevents it from suppressing constitutionally valuable opinions and true statements.” Since the SVA only criminalizes specific statements about specific medals, the court reasoned, it certainly provides adequate “breathing space.” (Judge Jerome A. Holmes dissented, writing that “I believe that the First Amendment generally accords protection to such false statements of fact,” and that the government had not demonstrated a “compelling interest” to justify the Act.)

Though the panel majority claims to be deriving its rule from Supreme Court precedent, “breathing space review” is a new term in First Amendment law. UCLA Law Professor Eugene Volokh, who has co-authored an amicus brief urging the Court to uphold the Act, said in an interview, “What the court calls ‘breathing space review’ is well established in First Amendment cases, such as Gertz, Garrison, and Sullivan”—all cases that concerned defamation.

Volokh also points out that a number of states, including Ohio, already make it a criminal offense to lie about oneself when running for office. “I don’t think the sky has fallen in Ohio,” he said in an interview. “I don’t see a First Amendment line between lies that are trying to get a small amount of money and lies that are trying to get your vote or sex or respect.”

This case offers two views of human nature and two views of the government’s role. To Kozinski, humans are fallen creatures who lie constantly; barring special circumstance, the government should stay out of their lives. To the Tenth Circuit majority, good people don’t lie and will not be chilled by FBI enforcement of compulsory truthfulness. 

In a 2010 case called United States v. Stevens, the Court warned legislatures not to try to think up new categorical exceptions to free speech. The “false statements of fact” rule is distinctly novel. Alvarez will give us a hint about whether the Court meant what it said in Stevens.

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