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Double Jeopardy

This is a doozie for all you 5th amendment fans.

Driver In Fatal DUI May Never Go To Jail Due To Judge's Oversight

ORLANDO, Fla. -- An alleged drunk driver killed another driver. But, because of a judge's oversight, the driver may never go to jail. ...

...Bohms was ticketed for two violations, misdemeanor DUI and felony DUI manslaughter.

...The accused drunk driver's attorney, Amanda Jacobson, says she assumed the DUI manslaughter charge had been dropped and helped her client plead no contest to the much less serious charge when there was no prosecutor in court.

The judge apparently did not notice the information in the case file indicating there had been a fatality and accepted the plea on the lesser charge. He sentenced Bohms to a $573 fine, one year's probation, DUI class and 50 hours community service.

When the judge became aware of the mistake, he tried to throw out the plea.

The DUI manslaughter case is under consideration by the State Attorney's Office. But, somehow, the lesser-included charge made its way through the courts and was scheduled for hearing.

The problem is, Judge Todd may not be able to legally throw out that plea and the accused drunk driver may never face prosecution for Nicolas Cudnik's death.

Amendment 5 says: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb

Maybe some of you poli-sci/legal types can chime in, but I just don't see how they can get this guy. They blew it... He got a get out of jail free card. I don't really blame the judge, he has a docket full I'm sure. But the prosecutor should be fired and I don't think he'll be running for DA any time soon.

Comments (11)

Unless the plea agreement s... (Below threshold)

Unless the plea agreement specifically precluded being charged with manslaughter, I don't see why. Double jeopardy, as I understand it, only attaches when there's been an acquittal.

In addition to double jeopa... (Below threshold)

In addition to double jeopardy, there may be an issue or claim preclusion problem here. (I can never keep the two issues straight).

Under preclusion doctrines, you have to bring all charges in a matter to the court the first time around. You don't get a chance to relitigate the same matter when it has reached a final disposition in court.

If the prosecutor didn't resolve the manslaughter charge the first time around, it's not the defense attorney's job to cover for him ... and preclusion means that it would take a hella lot to bring those charges.

I'd say the driver got off lucky.


Ah, but undoubtedly they ha... (Below threshold)

Ah, but undoubtedly they have a federal charge to hang on him now, wot? Conspiracy? How about obstruction for knowingly pleading to the lesser fine?

Prosecutors have ways around that silly anachronistic constitution.

James,The Double J... (Below threshold)


The Double Jeopardy Clause can apply even if there is no acquittal.

"[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense." U.S. v. Halper, 490 U.S. 435, 440 (1989). It is number [2] we are discussing here.

A head-spinning rule applies, but stick with me for two paragraphs:

As a federal constitutional matter, whether the clause would apply here depends upon the elements of the offenses. The Double Jeopardy Clause does not bar successive prosecutions if "each provision requires proof of an additional fact which the other does not." Blockburger v. U.S., 284 U.S. 299 (1932); U.S. v. Dixon, 113 S.Ct. 2849, 2856 (1993).

So, you look at crime A (what the guy pled guilty to) and crime B (what they want to prosecute him for now) and ask: does crime A have an element that crime B doesn't have? And does crime B have an element that crime A doesn't have? If the answer to both questions is yes, he can be prosecuted for crime B as well, despite his plea to crime A.

Clearly, manslaughter requires proof of death, while misdemeanor DUI does not. The question is whether misdemeanor DUI requires proof of an element that felony DUI manslaughter does not. I suspect the answer is no -- meaning that he can't be prosecuted for the manslaughter, if the plea was valid.

But the fact that the plea was taken outside the prosecutor's presence may render it invalid. I don't know how the rules work in Florida, but in California, judges may not dismiss one charge in return for a plea to another, without the approval of the prosecutor. So this would not be a valid plea to begin with in California.

By the way, I'm sure the attorney really thought that the more serious charge had been dropped. I'm sure she wasn't just trying to get him off by pleading the guy to a lesser charge.

(That's sarcasm.)

I also don't understand why the post blames a prosecutor. Doesn't the story say the prosecutor wasn't there?

That was kinda my point. Th... (Below threshold)

That was kinda my point. The prosecutor did not show up. That is (probably) going to let a guy who committed manslaughter to walk free.

Yeah, I blame him.

How do you know that the pr... (Below threshold)

How do you know that the prosecutor was notified of the hearing?

At the end of the day there... (Below threshold)

At the end of the day there was no prosecutor and that set this chain of event into motion. Whoever had this case was responsible.

You can play Johnny Cochran and say the glove did not fit. But at some point it is the prosecutor's job to make sure this does not happen and he failed to do that.


If you want be to blame the "prosecutor's office" OK same thing. (non-legalistically) My point it the story makes it look like the judge dropped the ball. I submit it is the prosecutor who should have been carrying it.

I'm not a prosecutor but I'm guessing that the fact you have to show up in court is something they teach you on the first day.

I am a prosecutor. I know ... (Below threshold)

I am a prosecutor. I know that judges are taught on the first day to make sure both lawyers are there. If a defense attorney walks into court on a day when no hearing is previously scheduled, and somehow convinces a judge to hear the case because her client is going to plead guilty -- that's not the prosecutor's fault, it's the judge's.

We don't know how it happened that no prosecutor was present. At least I don't. If you know more about the facts than is revealed in the story, let us know. From the facts that are revealed in the story, it does indeed sound like the judge's fault.

How do you know no hearing ... (Below threshold)

How do you know no hearing is previously scheduled?

Obviously it was scheduled as the defense attorney, the defendant and the Judge all showed up.

Your obvious bias is showing.

I don't. That's what I sai... (Below threshold)

I don't. That's what I said. We don't know. I don't know, and you don't know.

I thought I was pretty clear about that.

But *if* that's how it happened, it wasn't the prosecutor's fault.

I think irresponsibilty can... (Below threshold)

I think irresponsibilty can go back to the officer who wrote up the ticket. You have two charges that essentially say the same thing, DUI. If the elements of Misdemeanor DUI and Felony DUI contain the same statutory elements, then it was careless to write both up if the one "felony" DUI charge would have accomplished the same outcome as the misdemeanor DUI charge.

For example, DUI is a misdemeanor unless one of the following elements is present (1) death, then the statute for felony would have covered him on the misdemeanor count.

I think they just wanted to make sure they got this guy, and it backfired in this case.

Wow, the problem with judicial systems today. What ever happened to justice? It seems that everybody is just trying to fry the other guy.






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