Commentary on Yeager

The Yeager decision  (see here) by the Supreme Court is an important decision for those handling both white collar and non-white collar cases.  Some thoughts on the decision:

• Just because it is a hung jury on some counts, doesn't mean the government can rrepackage it and try again calling it something else. If  it is the "same offense" it will not be allowed.  Here the conduct forming the basis for the "insider trading" was the same as the "fraud" offense.
• The doctrine set forth in Ashe v. Swenson controls - even when dealing with a multi-count case.
• The government practice of filing multiple counts for the same conduct, hoping that something will stick, doesn't provide them with multiple trials when it is the same conduct and the jury has acquitted on that conduct.  As stated by the Court -

Because a jury speaks only through its verdict, its failure to reach a verdict cannot - by negative implication - yield a piece of information that helps put together the trial puzzle. A mistried count is therefore nothing like the other forms of record material that Ashe suggested should be part of the preclusion inquiry.

• In deciding whether a retrial should be allowed, look at what the jury decided, not at what they failed to decide.  Thus, if they decided that the defendant had no material inside information, then clearly he could not be reprosecuted for conduct that was premised on his having material inside information.
• This decision will assist defendants who suffered multiple trials at enormous costs to them and their families.  The Supreme Court is sending a strong message that the government only has one bite of the apple for the same conduct.
• The Court leaves a door slightly open for the government to relitigate the fact issue in the lower courts, but one hopes that the government will use taxpayer money wisely and move forward with prosecutions where the jury has not spoken.
• This decision reaches far beyond the white collar world and offers defendants who have been subjected to multi-count indictments- set forth in multiple different ways - with increased finality should there be a hung jury on some of the counts in the Indictment.  The breadth of many federal criminal statutes allow for prosecutors to bring the same conduct under different statutes.  If there is an acquittal on the conduct - it really means not guilty.

(esp)(blogging from Boulder, Colorado)

Addendum to Bullet One - Yeager speaks to cases when there is a "not guilty" on some counts and a hung jury on others. Obviously, it would be a different situation if there were a hung jury on all counts.