Indiana Supreme Court Expresses Readiness to Change Procedural Double Jeopardy Framework

Several years before I started practicing law, the Supreme Court of Indiana decided Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, the Court announced a new framework for analyzing double jeopardy claims in criminal cases.

Indiana has always recognized that the Indiana Constitution’s Double Jeopardy Clause found in Article 1, Section 14 protected criminal defendants from repeated prosecutions for the same offenses (i.e., protection from procedural double jeopardy). But for the first time in Richardson, the Court also recognized a substantive double jeopardy right under Article 1, Section 14. In other words, the Court held that the Double Jeopardy Clause also protected defendants from being punished twice for the same conduct in the same proceeding.

The Court in Richardson also announced a new framework for analyzing substantive double jeopardy claims. In doing so, the Court detailed the history of double jeopardy law and the difficulty courts had in applying the law. The Court believed that its new framework would simplify things.

What’s notable is that the Court was sharply divided on the propriety of this new framework. Two of the five justices rejected the new framework. One justice would have limited double jeopardy prohibitions to six specific categories. The other justice disagreed with the majority’s holding that the Indiana Constitution recognized a substantive double jeopardy right at all.

From a practitioner’s perspective, the Richardson framework was pretty easy to understand. But application to real cases proved tricky. After two decades, the case law was a mess: seemingly similar cases had differing outcomes because the framework was so fact-sensitive. Other than in a few obvious scenarios, it was nearly impossible to know whether punishment for two or more offenses constituted a substantive double jeopardy violation.

In 2020, the Indiana Supreme Court changed course. In Wadle v. State, 151 N.E.3d 227 (Ind. 2020), the Court held that the Indiana Constitution did not recognize a right to protection from substantive double jeopardy after all. Instead, any protection from being punished twice for the same offense in the same proceeding derived from Indiana statutory law.

The Court provided a new framework for analyzing statutory double jeopardy claims. And most relevant to this discussion, the Court left one question for another day: whether the previous framework provided by Richardson still applied to procedural double jeopardy claims.

Last year the Court seemed poised to answer that question when it granted transfer in Schoeff v. State. In Schoeff, the defendant was charged with Level 1 felony dealing a controlled substance resulting in death and Level 5 felony conspiracy to commit dealing. A jury found the defendant guilty of the conspiracy count but hung on the dealing-resulting-in-death count. The State retried the defendant on that count, and the second jury rendered a guilty verdict.

The defendant appealed, arguing that the second trial placed him in procedural double jeopardy. The Court of Appeals affirmed but issued three opinions in doing so, expressing confusion about how to analyze the claim in light of Wadle. The Supreme Court granted transfer and held an oral argument. But instead of issuing an opinion, it reversed its grant of transfer in a published order. The order is unusual because three of the five justices wrote an opinion.

Who did not write? Chief Justice Rush and Justice Goff, who simply voted to vacate its earlier order granting transfer and to reinstate the opinion of the Court of Appeals.

Justice Molter respected the denial of transfer and wrote that he believed this was not a double jeopardy case at all but a continuing jeopardy case. Thus, Justice Molter did not believe this was the right case to address how to analyze procedural double jeopardy claims.

Justice Massa also respected the denial of transfer. However, he expressed his openness to the idea of finding a simpler approach to double jeopardy law. He called our current approach “the cure [that] has been worse than the disease.”

Justice Slaughter expressed his readiness to fix the problem now. In his dissent to the denial of transfer, Justice Slaughter proposed that Indiana apply only a “same elements” standard to procedural double jeopardy claims. In other words, the State would be prohibited from prosecuting the defendant for an offense that had the same elements of an offense for which the defendant had already been prosecuted and that arose out of the same episode of criminal conduct.

Practitioners will have to wait a little longer, though, to see whether the Court will indeed change the framework for analyzing procedural double jeopardy.