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Double jeopardy does not prohibit state from retrying defendant on lesser charge

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Although a man’s conviction was overturned, the Indiana Supreme Court has ruled he can still be retried on the same charge without violating double jeopardy prohibitions because “a rational jury” would have considered more than one element of the crime.

Andrew McWhorter was charged with murder following the shooting death of his girlfriend. At trial, the court also instructed the jury on voluntary manslaughter and reckless homicide.

The jury found McWhorter not guilty of murder but guilty of voluntary manslaughter.

McWhorter filed a post-conviction relief petition, contending the jury instruction was flawed since both murder and voluntary manslaughter contain the element that the defendant knowingly killed another person. He argued the court permitted the jury to re-deliberate the elements of murder when considering voluntary manslaughter even though it had already acquitted him of the higher charge.

The post-conviction court denied McWhorter’s petition. McWhorter appealed and the Indiana Court of Appeals reversed the judgment of the post-conviction court. However, when it remanded the case, it included the instructions that McWhorter may be retried on the charge of reckless homicide but not on a charge of voluntary manslaughter.

The state appealed to the Supreme Court, challenging the COA’s restriction on the charge with which McWhorter can be retried.

Based on the arguments McWhorter presented in his post-conviction relief petition, he asserted that retrying him on voluntary manslaughter would be double jeopardy.

He pointed out both the definition of murder and voluntary manslaughter share the same element that the defendant “knowingly killed” the victim. By finding him not guilty of murder, the jury has already determined he did not knowingly kill his girlfriend and, therefore the state should not be allowed another opportunity to present the issue.

In Andrew McWhorter v. State of Indiana, 33S01-1301-PC-7, the Supreme Court found no prohibition on retrying for reckless homicide or voluntary manslaughter. It noted other elements are included in the definitions of the two charges so “knowingly killed” was not the only single rationally conceivable issue in dispute before the jury.

 “…we conclude that a rational jury could have based McWhorter’s acquittal on an issue other than whether he acted knowingly,” Justice Robert Rucker wrote for the court. “Particularly given the presence of an instruction on voluntary manslaughter (flawed though it may have been), it is certainly conceivable that a rational jury could have determined that McWhorter acted knowingly but did so under mitigating circumstances.’


 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

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  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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