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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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