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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

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  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...