Double Jeopardy

A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to convict you.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges. for related appellate issues for representation in a second trial


Contact Information