ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.’


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

ADVERTISEMENT