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Washington Court "clarifies" Double Jeopardy in criminal law

The Washington Supreme Court recently issued a decision in the area of criminal law which tried to clarify when prosecutors can refile charges after a jury has reached a verdict on a lesser included offense. State v. Glasmann, (May 7, 2015)

The defendant was on trial for fist degree assault, first degree attempted robbery, and first degree kidnapping. The jury reached agreement on the kidnapping charge, but apparently could not reach agreement on the  first degree assault and  first degree robbery charges. It convicted the defendant of the lesser charges of assault in the second degree and second degree attempted robbery.

The defendant filed a personal restraint petition alleging misconduct by the prosecutor in closing argument. The court granted the petition and vacated his convictions for the assault, robbery, and kidnapping. The prosecutor then attempted to retry the defendant on the greater charges on which the jury had apparently been unable to agree. Glasmann argued that this was barred by the constitutional prohibition against double jeopardy.

The jurrors were given instructions that if after a "full and careful consideration" of the greater charge they could not reach agreement, they should move onto the lesser included charges. The majority of the Washington Supreme Court concluded that by leaving the verdict forms for the greater charges blank, the jury was simply following the instructions it had been given to move on to the lesser charges and necessarily was deadlocked. It chose not to follow a decision by the Federal 9th Circuit of the Court of Appeals that would require a more concrete showing of "genuine deadlock" by the jury before a mistrial (Hung Jury) could be declared.

The dissenting justices would have reversed the trial court, and held that absent a more definitive showing of "genuine deadlock" there was no necessity for declaring a mistrial, and hence the retrial on the greater charges should be barred by the Double Jeopardy clauses of the Washington and United States Constitutions.

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