Wednesday, November 30, 2016
Yesterday the U.S. Supreme Court issued a unanimous decision in Bravo-Fernandez v. United States. It’s the Court’s first merits decision of the new Term, and it deals with the issue-preclusion component of the Double Jeopardy Clause. Here are excerpts from the opening passages of Justice Ginsburg’s opinion (which also provide a nice summary of the Court’s case law in this area):
In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970).
Does issue preclusion apply when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact? In such a case, this Court has held, both verdicts stand. The Government is barred by the Double Jeopardy Clause from challenging the acquittal, see Green v. United States, 355 U. S. 184, 188 (1957), but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect, United States v. Powell, 469 U. S. 57, 68 (1984).
Does issue preclusion attend a jury’s acquittal verdict if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue? This Court has answered yes, in those circumstances, the acquittal has preclusive force. Yeager v. United States, 557 U. S. 110, 121–122 (2009). As “there is no way to decipher what a hung count represents,” we reasoned, a jury’s failure to decide “has no place in the issue-preclusion analysis.” Ibid.; see id., at 125 (“[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything.”).
In the case before us, the jury returned irreconcilably inconsistent verdicts of conviction and acquittal. Without more, Powell would control. There could be no retrial of charges that yielded acquittals but, in view of the inconsistent verdicts, the acquittals would have no issue-preclusive effect on charges that yielded convictions. In this case, however, unlike Powell, the guilty verdicts were vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis.
We hold otherwise. One cannot know from the jury’s report why it returned no verdict. “A host of reasons” could account for a jury’s failure to decide—“sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few.” Yeager, 557 U. S., at 121. But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns. We therefore bracket this case with Powell, not Yeager, and affirm the judgment of the Court of Appeals, which held that issue preclusion does not apply when verdict inconsistency renders unanswerable “what the jury necessarily decided.” 790 F. 3d 41, 47 (CA1 2015).
Justice Thomas issued a concurring opinion, urging that “[a]s originally understood, the Double Jeopardy Clause does not have an issue-preclusion prong” and arguing that “[i]n an appropriate case, we should reconsider the holdings of Ashe and Yeager.”