Double Jeopardy or Not

What does Double Jeopardy mean if they can still try you all over again years after an acquittal?  I won’t begin to claim to understand the fine points of criminal law since my practice was all in civil law but, of course, law school forced me to learn the basics and this case that Harris County prosecutors are pursuing simply doesn’t pass the smell test for me.

And jury trials are expensive for society but we use them so that a group of citizens gets to see the evidence, to be the eyes and ears for us all, to make the decision.  We do a lot of backseat driving by watching “court TV” but we rarely get to see all that the jury saw so juries are entitled to a certain amount of deference in my opinion.  Do juries ever get it wrong?  Sure they do.  They are a reflection of us all and, if society is going wrong, so will juries.  However, most juries seem to take their job seriously and do a pretty good job.  So it always disturbs me quite a bit when a prosecutor seems to be hanging onto a case with claws after a jury said it’s over.

Used to be that they tried you and, if the jury hung, they MIGHT try a second time.  After that, kinda a done deal.  An acquittal?  It’s OVER and more charges were pretty considered despicable.  Whether it’s a hung jury or an acquittal, but especially with an acquittal, the jury has said on our behalf to the prosecutor that it’s time to stop.  Where the prosecution includes “lesser included” crimes, I think this is especially true. 

Lesser included offenses can be a complicated concept but a simple example is a murder by hitting someone repeatedly.  There are several lesser included offenses from simple assault up to murder, a tier of offenses the jury can consider.  If a jury is unwilling to find someone guilty even of those lesser crimes and, again, much more so, if one is acquitted of all (including lesser included charges), then it really should be OVER.

There are the technical aspects of double jeopardy and joinder but, for every legal concept, there is almost always a work around, a way the prosecutor can find to prosecute the defendant over and over and that has become more possible in the last decade as we’ve created more laws to be able to do just exactly that.  No jury ever finds someone “innocent” because that isn’t even one of their options and I think that adds to prosecutors thinking that “not guilty” doesn’t mean “let it go” when it really should mean just that; when it really should mean “STOP”.

But now they just try people over and over, until the jury isn’t hung and/or on different charges.  It’s mostly a game of theatrics for prosecutors who tweak their performance based upon the reactions of jurors.  In this one, he was indicted for arson and murder and now being tried for arson?  I have to guess the arson charges were dismissed last time but this is so very clearly the DA’s attempt to get a huge second bite at this case and it’s 7 years later?

Talk about destroying someone’s life!  In this case, I grasp what may be tugging at the prosecutor’s heart but I still think this prosecution is more persecution than prosecution and I think it’s just plain wrong.

In 2002, “The day of the fire was the first time the father had ever visited his daughter, Harris said, and they had been alone for little more than an hour.”  “A man whose infant daughter was found dead after a Christmas tree fire in southwest Houston has been indicted on charges of capital murder and arson.  Lemuel Anthony McNeil, 40, is accused in the death of his 13-month-old daughter, Anointed Purpose Flournoy, whose body was found Dec. 15 after a Christmas tree caught fire at a house in the 10200 block of Cherry Limb…”  Mr. McNeil was tried and ACQUITTED in 2003.

“They called in arson experts because the theory was that the arson was to cover up the murder,” his former attorney, Dick DeGuerin, said Wednesday. “That jury didn't believe he killed the child and didn't believe he started the fire.” 

According to the Houston Chronicle 2 days ago, in an article titled “Man acquitted in killing to stand trial for arson in same incident”, “A Houston man acquitted of capital murder in 2003 in a house fire that killed his infant daughter is scheduled to be tried for arson today despite double jeopardy arguments from his lawyers.”  Maybe the prosecutors are right on the law, although I doubt it.  Maybe the appellate court ruled correctly on the issue of double jeopardy, although I doubt it.  EVEN if the prosecutor and appellate court are correct on the law, this prosecution is just plain WRONG.

prosecutors hope to convince jurors that the arson charge should be enhanced because the fire caused serious bodily injury to the child. If jurors convict and agree to the enhancement”  As far as I’m concerned, ANY issues or charges around a single incident like this should be brought in a single trial.  No defendant should have to fund multiple defenses of multiple trials like this.  MORE IMPORTANTLY, any “enhancement” involving alleged injury to the child falls squarely as a lesser included for the allegation of murder of the child and Mr. McNeil was ACQUITTED of that 7 years ago.  The prosecutor in these cases (yes, the same prosecutor as 7 years ago) simply wants a do over.

District Judge Randy “Roll has barred jurors in the arson trial from hearing that McNeil was acquitted in the previous capital murder case, but will allow prosecutors to tell the jury that the child died in the house that day…”  THAT ruling is an obscenity in my opinion!  It is outrageous that Mr. McNeil has to defend himself again but it is obscene to tell the jury that the child is dead but NOT tell them that Mr. McNeil has been tried and ACQUITED of murder (and inherently acquitted of lesser included charges of any act down to simple assault) of the child.

Arson charges and convictions are just plain problematic to start with.  There is a long history of convicting people of arson and tacking on murder when someone dies in the fire and all done on the basis of opinion testimony of fire “experts” who are anything but experts or even very knowledgeable.  ABC’s 20/20 did a show a few weeks ago about a real scientist who has raised HUGE questions about arson and related convictions.  Unfortunately, the video of the program is already gone but the printed intro brief is still available.  “After this experience, I counted only those investigators favoring a scientific approach to fires among my friends, but over the years that cadre has grown, while the number of proponents of the old way of doing things has shrunk. The great scientist Max Planck may have said it best: "A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it." This quotation is sometimes paraphrased more succinctly: "Science advances one funeral at a time."”  He is correct as far as I can tell and this should not be.  (Personally, I'm leaning toward perjury prosecutions for those who continue to testify their opinions if those opinions have been disproved by well established science.)

I so wish the 20/20 show was still available for you to see on-line.  There is the well spoken, educated John Lentini v. the oh, so much less than Barnie Fife models of fire “experts” who have nothing better than “guilty ‘cause I say so”.

You see, in the meantime and while waiting for the funerals of the “experts”, we will be convicting people wrongly of arson and related deaths, calling those deaths murder, sending people to death row and executing them.  So we add their wrongful deaths to the death count.  Many of them will get no funeral at all as they were often vilified and convicted in the press and public opinion long before they were ever tried and wrongfully convicted in court.

In 2004, we executed Todd Willingham who had been convicted of arson and murdering his 3 children who died in the fire.  Normally, an execution is the end of all attention but not so in this case.  “According to an August 2009 investigative report by an expert hired by the Texas Forensic Science Commission, the original claims of arson were not sustainable.”  The local “experts” in Corsicana, TX, deny the validity of that report.  We’ve all seen it.  The authorities always deny error.  Even when convictions are over turned by DNA evidence it is rare for prosecutors to admit error; usually, they just go silent.

In Plano, TX, Curtis Severns had a fire in his gun shop.  He was convicted of arson.  “Curtis Severns is serving 27 years for an arson he almost certainly didn’t commit.  Sloppy science put him there.”  “But new video evidence has surfaced that contradicts the key testimony that convicted Severns and shows the fire was likely accidental. In 2007, someone inside the ATF leaked one of the agency's training videos to Lentini. In the video, shot in 1994…” and, of course, the testifying "expert" for the government knew full well of the training videos.  And yet Mr. Severns sits in prison.  There’s a Help Free Curtis Severns effort now that includes a Facebook page.

There is something desperately wrong with our system when innocent people are executed, when innocent people sit in prison for years.  The courts are a big part of the problem but, to me, the prosecutors are a much bigger part of the problem.  They want to “win”.  It is their job to find truth and justice, not to “win” trials by convicting.

The death of a child is always awful.  The death of a child in a fire is horrific.  I can even understand the emotion to want to find “fault”, to blame, but sometimes death is merely a tragic accident.  From what is available to the public, it certainly appears that the death of Anointed Purpose Flournoy, a 13 month old child, Mr. McNeil’s child, was just such a tragic accident.  He’d seen her just that one time for an hour before the fire which appears to have been from a Christmas tree having been sparked.

Mr. McNeil has been prosecuted for murder.  The jury who saw so much more than we ACQUITTED him and that should have been the end.  I do not envy the prosecutor who has to become emotionally invested in a case only to be told by the jury that she was wrong but that is exactly the case here and, that having happened, she should revise her thinking of the case.  She should tell those who still believe this child was murdered that they too need to rethink, that this child died a tragic and accidental death.  The current prosecution for arson simply should not be.

We all have the right to expect our prosecutors to be rational, to be able to revise their position and analysis based on facts and science rather than emotions.  We should expect and demand that they do so and that they not waste public resources pursuing their own emotional vendettas as appears to be happening in this case against Mr. McNeil.

Mr. McNeil is far from alone in being wrongfully prosecuted as my regular readers will know.  The system is broken and we must find a way to fix it.  As a society, we must get back to encouraging logic and critical thinking generally so we will have more rational prosecutors and even jurors.  No one should be wrongfully convicted.  More so, no one should  face years and decades of multiple prosecutions after being ACQUITTED.

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