*Spoiler alert regarding the film “Fracture“*
I just returned from seeing the new Anthony Hopkins legal-thriller film Fracture. Despite the fact that I find it to be an absolutely asinine piece of law AND a poorly crafted plot device, I think that the film’s invocation of a particular aspect of double jeopardy was legally correct…
See People v. Harrison, 395 Ill. 463 (1947) (cert. denied); see also Blockburger v. U.S., 284 U.S. 299 (1932)
Damn you and your legal trickery, Ryan Gosling… Hopkins should have beaten you until the bitter end. That was definitely the first movie where I’ve rooted for a truly culpable murderer.
I think the film was wrong on this point. Under Blockburger, a defendant can be tried for two crimes arising from the same conduct only if “each [charge] requires proof of an additional fact which the other does not.” The attempted murder charge does not require proving any fact which is not part of the murder charge. Separately, the state would be barred by collateral estoppel from asserting that Hopkins shot his wife. See generally Ashe v Swensen 397 US 436 (1970).
[edited by Salmon Chase to reflect proper citation]
I’m not sure I agree that Blockburger requires precisely what you say, but even if it does:
Under California law, the charge of attempted murder would have been brought under PC 664, which contains the element that someone attempt to commit a crime but fails. That would have been the first trial.
The second trial comes along, and now the charge would be murder under PC 187, which does NOT contain the attempt element but DOES contain the element that a human being is actually killed – an element which, of course, is not contained in the 664 attempt charge.
The collateral estoppel issue is a good point, but I think People v. Harrison is clear that in this type of situation, a subsequent prosecution for murder would be allowed.
I don’t have free access to Westlaw or Lexis, so I can’t comment on the Harrison case. With that global caveat, I offer a couple of further observations:
I’ve never understood the failure of an attempt to be an element of an attempt charge. Rather, I’ve always understood that the prosecutor need not prove the success of the attempt.
If the law were as you are stating, then some peculiar results would follow. First, prosecutors would face a quandary every time they could not prove—one way or the other—whether an attempt was successful. Consider a case where one gang member shoots a rival, but law enforcement can’t find the victim (or his body). Would the defendant be acquitted on both attempt (for failure to prove that the victim did not die) and on murder (for failure to prove a death)? Second, a defendant could be acquitted on attempt if he proves he succeeded. So, if Hopkins’ wife died mid-trial, he could move for a judgment of acquittal and win.
If, as I imagine, attempt does not include the “failure” element, then Blockburger surely bars the second trial. My Google research pulled up an article from Yale Prof. Amar, who agrees:
“Thus, after a defendant has been tried and “finally” “acquitted” or “convicted” of attempted murder in a “fair” and “suitably error-free” trial–and we shall later refine the concepts in quotes –he cannot be retried for the same attempted murder. But can he later be tried for premeditated murder? The Supreme Court has put forth a test that, applied
with a straight face, would always bar this second trial. Under the so-called Blockburger test, attempted murder is the same as premeditated murder.”
http://www.law.yale.edu/documents/pdf/1997Double.pdf
I’m curious: What does Harrison say on the collateral estoppel point? I just can’t see how a judge would allow the state to try to prove that “x” shot “y” at “z” after having failed to prove that in a previous trial.
Though this is a site for public defenders, and I’m an Assistant Crown Attorney (Canadian speak for prosecutor) in Toronto, hey I was a defence lawyer up until last July.
Anyways, I thought I’d put a thought out there for analysis. What strikes me as a potential difficulty in the subsequent murder case is proving the actus reus for murder. I’m sure this situation arises in many circumstances, and I’m curious what the experiences are there in such circumstances. In this case, the actions of the accused in shooting his wife did not actually result in her death, in so far as she could have been kept alive indefinitely through life support. The accused acted in accordance with the law in ordering that the life support be disconnected, just as the doctor who complied was acting in accordance with the law. Accordingly, in such situations could the accused be successfully prosecuted for murder, or only attempted murder? In any event, in so far as pulling the life support was done in accordance with the law, it appears that the prosecution would have to rely on the exact same actions to make out the case.
Any thoughts?
Exactly (coming from former asst. d.a.) CAM is correct. I was explaining the doctrine of collateral estoppel to my fiance on the way out…annyoing, yes, but true.