My recent post about the inconsistent verdicts error in the presentation of the Bravo-Fernandez case led to some interesting and illuminating exchanges, some on Twitter (with William Baude and Dan Epps and Carissa Hessick) and some offline. These have helped me sharpen up the point I am trying to make, so I’ll add a few more words here.
The question in Bravo-Fernandez is whether the collateral estoppel branch of double jeopardy law, as articulated in Ashe v. Swenson, should prevent a retrial for bribery. At a first trial a jury acquitted the defendants of traveling to commit bribery and conspiring to commit bribery but convicted them of bribery. Turns out that the instructions to the jury on the bribery charge would have allowed them to convict for the passing of a mere gratuity, so the First Circuit reversed the bribery convictions. Now the government wants to retry the defendants on the bribery charge, and the defendants contend that the earlier acquittals for traveling and conspiring should be read as a pronouncement that the jury already found adversely to the government on what the government needs to prove to sustain a bribery conviction at the retrial.
In Ashe, the Court’s task was to look at a single verdict of acquittal in light of the evidence offered against the defendant and to determine whether “a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”
The Bravo-Fernandez case is a little different, in that the Court has more data to work with: it has the acquittals, and the trial evidence, as in Ashe, but it also has the convictions for bribery. (To be sure, the jury wasn’t correctly instructed on that count, but I don’t think that matters for the Ashe question, and I’ll say why in a moment.)
In my earlier post I argued that the convictions of bribery at the earlier trial tend pretty strongly to suggest that the accompanying acquittals weren’t acquittals of bribery.
What I want to zero in on here is what I think is a flawed argument for disregarding the bribery convictions in the Ashe analysis. The Bravo-Fernandez defendants seek leverage from the supposed logical inconsistency between the convictions for bribery and the acquittals of traveling and agreeing to commit bribery (which the government has bafflingly conceded).
When verdicts are truly inconsistent, they fail to be the only thing that a verdict is supposed to be: a definitive pronouncement about the guilt of the accused. Under Powell, logically inconsistent verdicts of conviction and acquittal are an impenetrable puzzle: the jury might have “meant” the acquittal or they might have “meant” the conviction, but they simply couldn’t mean both.
You can see why Powell would seem like an attractive tool for the defendants in Bravo-Fernandez. It would, in a sense, rinse the bribery convictions out of the Ashe inquiry into what the jury must have meant. If the convictions and acquittals in Bravo-Fernandez were logically inconsistent, then Powell tells us that we can’t be sure the bribery convictions meant anything at all -- let alone anything that would show the jury had found proof beyond a reasonable doubt of bribery.
But the Bravo-Fernandez verdicts are not inconsistent in the Powell sense for the reasons I explained in my earlier post. There’s no reason to think that the acquittals and the convictions don’t all mean exactly what they say they mean.
So the convictions (again, except insofar as they were grounded in a mistaken theory of bribery liability) must impact the Ashe calculus in a very unhelpful way for the defendant seeking to invoke collateral estoppel. They are very much part of what a court has to take into consideration in figuring out what the earlier acquittals meant. After all, Ashe wants us to determine whether a reasonable jury could have grounded its acquittals on any matter other than that which the government seeks to relitigate. It seems to me that the answer here is: of course the jury could have! They found proof beyond a reasonable doubt of the elements of bribery (as those elements were explained to them). Only one of the elements of bribery was vitiated by the instructional error at the first trial. How then could we possibly be sure that the acquittals meant that the proof of bribery failed?
Now, it’s true that the jury was told they could convict on proof of a mere gratuity rather than a true bribe. That’s what got the convictions reversed. But this doesn’t help the defendants; it hurts them, and for a pretty obvious reason: How can we possibly say the jury found proof of bribery lacking at the first trial if they were never asked whether there was proof beyond a reasonable doubt of all of the elements of bribery?
The more I think about this case, the odder its presentation to the Court seems, and the less plausible the defendant’s invocation of Ashe is.