In the News, On the Bar Exam: Learning Double Jeopardy from the Letitia James Grand Jury

Recently, a federal grand jury has twice declined to indict New York Attorney General Letitia James on federal mortgage fraud charges. Before those two grand jury “no” votes, an earlier indictment had already been thrown out because the judge ruled that the lead federal prosecutor was unlawfully appointed. In other words, the original case was dismissed before it ever reached a trial.

If you are a Criminal Law or Criminal Procedure student, or studying for the bar exam, you may have had an immediate reaction to this sequence of events. It probably sounded something like: “Can the government really keep trying to indict her? Does the Double Jeopardy Clause stop this?”

The short answer, at least for now, is no. This isn't yet a Double Jeopardy problem. It is a perfect example of why the doctrine is trickier than a simple “you only get one chance” rule.

Source: https://ag.ny.gov

What Double Jeopardy Actually Protects

The Double Jeopardy Clause is part of the Fifth Amendment. It protects people from being prosecuted twice for the same offense in a way that is fundamentally unfair. It does this in three main situations: when the government tries to bring a second prosecution after an acquittal, when it tries a second prosecution after a conviction, and when it tries to impose multiple punishments for the same offense.

On an exam, however, simply reciting that list of protections isn't enough. The first move in any Double Jeopardy analysis is always to ask a timing question: has jeopardy actually attached in the earlier proceeding? If it hasn't, then double jeopardy protections don't apply, even if what the government is doing might feel repetitive or aggressive.

Jeopardy attaches at a specific moment. In a jury trial, jeopardy attaches when the jury is sworn. In a bench trial, jeopardy attaches when the first witness is sworn. Before that moment, we say that the case hasn't yet reached the stage where the Double Jeopardy Clause is in play.

Applying That to the Letitia James Story

Now bring that timing rule back to the Letitia James situation. The original indictment against her was dismissed before trial when the judge concluded that the prosecutor in charge had been unlawfully appointed. Because of that ruling, the indictment was treated as invalid from the outset. There was no jury, no witnesses, and certainly no verdict.

Once you line up the facts with the doctrine, the key point becomes very clear. Since there was no jury sworn and no witness sworn, jeopardy never attached in that first case. The criminal process never reached the stage where Double Jeopardy protections could begin to operate.

After that dismissal, the Department of Justice took the case to a grand jury again. In fact, it presented the case to two different grand juries in two different federal districts. Both times, the grand juries returned what is called a “no true bill.” That phrase means the grand jury declined to issue an indictment. In simpler terms, the grand jury decided that the case wouldn't move forward into a formal prosecution.

A grand jury proceeding is an investigative and screening step that occurs before jeopardy can attach. A grand jury’s decision not to indict isn't an acquittal at trial. It is a decision that the case won't become a trial at all. Because of that, the Double Jeopardy Clause isn't triggered by a “no true bill.”

If you put all of this together, the government’s repeated efforts in this situation are best understood as attempts to start the first valid prosecution, not as attempts to run a second or third trial after one has already occurred. That is why, under current doctrine, the Double Jeopardy Clause doesn't bar the re indictment attempts.

Other Concerns That Are Not Double Jeopardy

It is important to separate constitutional doctrine from fairness and policy. Many people may feel uneasy about the idea of multiple attempts to charge a political officer. That concern is real, but it falls more naturally into other areas of law, such as due process, vindictive prosecution, or selective prosecution. Courts sometimes step in if repeated filings become harassment.

However, those doctrines are different from double jeopardy. You won't get full credit on an exam if you call every repeated attempt “double jeopardy” without first walking through attachment and the procedural posture of the earlier case. Part of what examiners want to see is your ability to place each concern in its proper doctrinal home.