Support NeoGAF

[Jack Remington]

http://www.nbcsandiego.com/news/local/Verdict-Julie-Harper-Retrial-Second-Degree-Murder-of-Jason-Harper-Carlsbad-331244972.html#

A jury found a Carlsbad mother guilty of second-degree murder for shooting her husband three years ago while their children were in another room watching cartoons.

Julie Harper admitted to fatally shooting her husband, Jason Harper, in their North County home on Aug. 27, 2012, but claims she did it in self-defense, alleging that she feared Jason would kill or rape her.

At her first trial one year ago, Julie was acquitted on first-degree charges. Prosecutors sought to retry her on second-degree murder charges and her retrial began Sept. 14.

Because she was convicted of second-degree murder, she faces 40 years to life in prison. The jury also found two allegations to be true: personal discharge of a firearm causing death and personal use of a firearm.

Here's an article from when the retrial was announced: http://www.sandiegouniontribune.com/news/2014/oct/15/new-trial-julie-harper/

I'm very much not okay with this, regardless of whether or not she murdered her husband. She was acquitted of murder. For the prosecution to be able to bring her back to court for the same event, just giving it a different label, seems unconstitutional, and I'm really shocked that this could happen in the United States. If you read the article, you'll see they threw manslaughter in there as well.

IMO, prosecutors should be able to bring exactly one charge for an alleged crime. None of this charge you with first degree, but keep second degree in the back pocket just in case.

No one but this woman knows what actually happened that day, but for the sake of our founding principles, she should be free right now.

 

[Shadow_Lord]

Doesn't this violate the fifth amendment?

 

[Aeternus Malum]

Doesn't this violate the fifth amendment?

It's a different charge

 

[Piecake]

Yea, that definitely seems unconstitutional

 

[mcfrank]

Yeah, this like the wrong way to the correct outcome.

 

[mercenar1e]

I thought something like this would be considered double jeopardy?

 

[Jack Remington]

It's a different charge

Technically.

They shouldn't be able to stack them like that. Goes completely against the spirit of our Bill of Rights.

 

[Shadow_Lord]

It's a different charge

It's going on a technicality.

 

[foxtrot3d]

It's going on a technicality.

All of law is a technicality, I've never understood that expression when it comes to the law.

 

[Angelus Errare]

That's really fucked up you can just go for another charge like that wtf.

 

[Alpha Centauri]

The onus has to be on the prosecution to try the case with what they believe they can actually get. What would they do if the 2nd degree charge didnt work? Try her in a year for manslaughter?

This shouldn't be how the law operates.

With that being said, if she's guilty she's guilty. Shouldn't have been tried again, but since she was, i'm glad justice was served.


edit: Thanks Abacus for the clarification

 

[Sir Abacus]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

 

[IISANDERII]

I'm really shocked that this could happen in the United States.

I'd be shocked if it didn't happen in the United States.

 

[Piecake]

All of law is a technicality, I've never understood that expression when it comes to the law.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Technically, it doesnt say charge though. It says offense, which I think should mean the crime, and being put in double jeopardy on two different charges for the same crime should be unconstitutional.

In this instance, I think 'technically' does not mean that it was technically right, but open to interpretation (even though it should definitely be crime not charge)

 

[excelsiorlef]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

Ok that does change things. But agreed if it's a DV situation, locking her up is just revictimization.

 

[StopMakingSense]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

That's a pretty major detail not in the OP, and completely changes the situation.

 

[Piecake]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

Oh, well that makes a lot more sense then. I have no problem with a re-trial on a hung jury. I thought this was some fucked up shit like try her for 1st degree murder, found innocent. try her for second degree murder in the second trial, found guilty.

Pretty fucked up if you can charge a person with different crimes for the same offense and have like 5 trials. Glad that isnt the case

 

[ronito]

Technically, it doesnt say charge though. It says offense, which I think should mean the crime, and being put in double jeopardy on two different charges for the same crime should be unconstitutional.

In this instance, I think 'technically' does not mean that it was technically right, but open to interpretation (even though it should definitely be crime not charge)

but it is a different offense. There's a large difference between first and second degree murder.

 

[Bodacious]

Doesn't this violate the fifth amendment?

No. It's explained in the articles linked in OP. At the first trial, the only final verdict reached by the jury was not guilty on 1st degree. The judge declared a mistrial on all the remaining counts, because the jury was hung. Mistrials can be retried.

edit: durnit. beaten.

 

[CDX]

It's a different charge

Yeah ...but as I understood it, I thought Double Jeopardy applied to the crime, not what the charges were.

She was already acquitted of that murder. Which was one crime. I don't understand how they can just throw another charge at her for the same crime, and it not be double jeopardy.

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

OK that makes a bit more sense.

 

[Angelus Errare]

Yea, thanks for the clarification abacus. OP can you add his post for those that come into the thread later?

 

[kirby_fox]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

And this is what we have to pay attention to. She got a retrial because of a hung jury.

Nothing to see here.

 

[#sorrynotsorry]

For the record, double jeopardy does apply to events, not charges.

But a mistrial is just a do-over for any variety of reasons. Could have been caused or requested by the defendant here.

 

[Tal Shiar Agent]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

Well that was a whole lot of nothing OP.

 

[B-Dubs]

That's a pretty major detail not in the OP, and completely changes the situation.

That's a pretty big detail to leave out. Mod might want to change the thread title and fix the OP.

 

[Piecake]

but it is a different offense. There's a large difference between first and second degree murder.

Did I say that there wasn't? It is unconstitutional to charge a defendant with one charge for one trial, another charge for the second trial if the defendant is found not guilty, and a third for third trial, etc etc for the same offense. What I meant by offense is the act of her killing her husband. Prosecutors shouldnt get multiple attempts at finding her guilty just becaused they charged her with first degree murder, then second degree murder, then first degree manslaughter, then second degree manslaughter, then whatever the fuck that they can stick on her.

 

[ronito]

Did I say that there wasn't? It is unconstitutional to charge a defendant with one charge for one trial, another charge for the second trial if the defendant is found not guilty, and a third for third trial, etc etc for the same offense. What I meant by offense is the act of her killing her husband. Prosecutors shouldnt get multiple attempts at finding her guilty just becaused they charged her with first degree murder, then second degree murder, then first degree manslaughter, then second degree manslaughter, then whatever the fuck that they can stick on her.

But that's not what's happening here.

 

[foxtrot3d]

Did I say that there wasn't? It is unconstitutional to charge a defendant with one charge for one trial, another charge for the second trial if the defendant is found not guilty, and a third for third trial, etc etc for the same offense. What I meant by offense is the act of her killing her husband. Prosecutors shouldnt get multiple attempts at finding her guilty just becaused they charged her with first degree murder, then second degree murder, then first degree manslaughter, then second degree manslaughter, then whatever the fuck that they can stick on her.

This is correct.

But that's not what's happening here.

He knows that but before OP's post was confusing such that it seemed that way.

 

[B-Dubs]

Did I say that there wasn't? It is unconstitutional to charge a defendant with one charge for one trial, another charge for the second trial if the defendant is found not guilty, and a third for third trial, etc etc for the same offense. What I meant by offense is the act of her killing her husband. Prosecutors shouldnt get multiple attempts at finding her guilty just becaused they charged her with first degree murder, then second degree murder, then first degree manslaughter, then second degree manslaughter, then whatever the fuck that they can stick on her.

That isn't close to what's happened here. There was a mistrial on the lesser charge during the initial trial, which means they can retry her on only that charge. Nothing out of the ordinary happened here, the OP just framed it as something messed up.

 

[Piecake]

But that's not what's happening here.

I know that. I posted afterwards that it is a complete non-issue now once an above poster clarified the hung jury part.

I responded to your post because you seemed perfectly fine with that multiple trials different charges scenario that I originally thought this story was about. You certainly did not make it clear that you were fine with it because of the hung-jury aspect of it (which I am as well)., since you did not mention it or explain your reasoning at all.

 

[Dennis]

So they went for the big one first and when that failed tried for a smaller one.

She may very well deserve to be in prison but imagine being on the receiving end of prosecutions that just keeps coming until they get you on something - the biggest one they can get!

Edit: Oh well, that might not quite be the situation here.

 

[Jack Remington]

That isn't close to what's happened here. There was a mistrial on the lesser charge during the initial trial, which means they can retry her on only that charge. Nothing out of the ordinary happened here, the OP just framed it as something messed up.

The lesser charge is the same crime. It's still the act of her shooting her husband. This should not be constitutional.

Edit: complete non-issue? Fuck. I strongly disagree. Strongly.

Prosecutors should only be able to bring one murder charge. 1st, 2nd, 3rd, pick one. You get one shot at it.

 

[MikeDip]

The lesser charge is the same crime. It's still the act of her shooting her husband. This should not be constitutional.

Edit: complete non-issue? Fuck. I strongly disagree. Strongly.

Prosecutors should only be able to bring one murder charge. 1st, 2nd, 3rd, pick one. You get one shot at it.

Did you miss the part about the mistrial? This is still that one shot they have.

 

[CLEEK]

All of law is a technicality, I've never understood that expression when it comes to the law.

One of The Onion's best headlines is so good, it doesn't even need an actual article.

http://www.theonion.com/graphic/jurisprudence-fetishist-gets-off-on-technicality-9063

 

[numble]

The lesser charge is the same crime. It's still the act of her shooting her husband. This should not be constitutional.

Edit: complete non-issue? Fuck. I strongly disagree. Strongly.

Prosecutors should only be able to bring one murder charge. 1st, 2nd, 3rd, pick one. You get one shot at it.

That's silly, especially as the facts may not be revealed until all the testimony is made at trial. So if they charge her for 2nd degree and she confesses on the stand that she intentionally with malice, planned the murder, they don't have the ability to charge her for 1st degree murder?

 

[Jack Remington]

Did you miss the part about the mistrial? This is still that one shot they have.

Did I miss that? I posted the thread.

The issue for me, the incredibly in-American and downright terrifying issue, is that they could charge her with both 1st and 2nd degree murder at the same time and then bring her to a second trial for the act of killing her husband. A second trial for the same act.

That is unequivocally incompatible with any natural reading of the 5th Amendment.

 

[CLEEK]

The lesser charge is the same crime. It's still the act of her shooting her husband. This should not be constitutional.

Edit: complete non-issue? Fuck. I strongly disagree. Strongly.

Prosecutors should only be able to bring one murder charge. 1st, 2nd, 3rd, pick one. You get one shot at it.

You're embarrassing yourself here.

The original trial had her being prosecuted for first degree murder, as well as the lesser offences of second degree murder and manslaughter.

The jury found her not guilty of first degree murder, but were hung on the other two charges. So as per every other case that results in a hung jury, it's going back for retrial for the charges that the jury couldn't decide on.

There's nothing to see here. Nothing out of the ordinary, immoral or unconstitutional.

https://www.justia.com/criminal/docs/calcrim/500/540a.html

 

[antonz]

Did I miss that? I posted the thread.

The issue for me, the incredibly in-American and downright terrifying issue, is that they could charge her with both 1st and 2nd degree murder at the same time and then bring her to a second trial for the act of killing her husband. A second trial for the same act.

That is unequivocally incompatible with any natural reading of the 5th Amendment.

The Jury never made a ruling on the 2nd charge so they were completely within the rights to retry the charge. Murder may in fact be murder but there are very different circumstances in 1st and 2nd degree

 

[Jack Remington]

You're embarrassing yourself here.

The original trial had her being prosecuted for first degree murder, second degree murder and manslaughter.

The jury found her not guilty of first degree murder, but were hung on the other two charges. So as per every other case that results in a hung jury, it's going back for retrial for the charges that the jury couldn't decide on.

There's nothing to see here. Nothing out of the ordinary, immoral or unconstitutional.

Attorney I'm guessing?

Some of you people get so caught up in that cloistered life you completely lose sight of how insane it can look to an outside observer.

If she had killed her husband and stolen his car, and the jury acquitted on murder but was hung on grand theft auto, sure, no problem with retrying her.

Three separate charges for the same action with the option to bring her to a second trial goes against our founding principles. No other way to put it.

 

[Bodacious]

Did I miss that? I posted the thread.

The issue for me, the incredibly in-American and downright terrifying issue, is that they could charge her with both 1st and 2nd degree murder at the same time and then bring her to a second trial for the act of killing her husband. A second trial for the same act.

That is unequivocally incompatible with any natural reading of the 5th Amendment.

You should probably read up on elements of a crime, lesser included offenses, and the effect of a mistrial on double jeopardy. It doesn't preclude retrial in the case of a hung jury. SCOTUS decided that in 1824. It can if the mistrial results from prosecutorial or judicial bad faith.

 

[numble]

Attorney I'm guessing?

Some of you people get so caught up in the cloistered life you completely lose sight of how insane it can look to an outside observer.

If she had killed her husband and stolen his car, and the jury acquitted on murder but was hung on grand theft auto, sure, no problem with retrying her.

Three separate charges for the same action with the option to bring her to a second trial goes against our founding principles. No other way to put it.

There is no option to bring her to a second trial. It was not chosen, it was a result of the mistrial.

Like I said, its silly to say there can only be one murder charge. All the facts may not be revealed until all the testimony is made at trial, and it is up to the jury to decide on the facts. So if they charge her for 2nd degree and she confesses on the stand that she intentionally with malice, planned the murder, they don't have the ability to charge her for 1st degree murder?

 

[Alucrid]

Attorney I'm guessing?

Some of you people get so caught up in that cloistered life you completely lose sight of how insane it can look to an outside observer.

If she had killed her husband and stolen his car, and the jury acquitted on murder but was hung on grand theft auto, sure, no problem with retrying her.

Three separate charges for the same action with the option to bring her to a second trial goes against our founding principles. No other way to put it.

why do you think we have different degrees of murder? because they're just that, different. a jury can decide that someone is not guilty of one degree but guilty of another

 

[Jack Remington]

Even if it's currently legal under our current system it's an outrage.

 

[Piecake]

Even if it's currently legal under our current system it's an outrage.

I think you are the only one outraged by it.

 

[CLEEK]

Three separate charges for the same action with the option to bring her to a second trial goes against our founding principles. No other way to put it.

No, I'm not an attorney, or even American.

She is being brought back to retrial because the first trail resulted in a hung jury. If you think that is unconstitutional, you have never read your own constitution.

 

[WonkyPanda]

OK, so the first trial had first and second degree charges. There was an acquittal on the first degree to which double jeopardy attaches and a hung jury (9-3 in favor of acquittal) on the second degree so it was mistrialed and then retrialed as double jeopardy doesn't attach to a mistrial.

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

Was about it come in and say this.

Jeopardy hadn't attached on the 2nd degree murder charge.

 

[foxtrot3d]

Even if it's currently legal under our current system it's an outrage.

Hmm, I suspect you don't understand how our legal system has operated for over 200 years. This is now new. This is ordinary. This is how trials are supposed to work.

 

[CLEEK]

Either way, it's a really touchy thing going after murder in a domestic violence situation. It smacks of "this is wrong".

This is bollocks, you know that, right?

If she was in an abusive relationship, that doesn't give her immunity to kill her husband in cold blood. Killing him in genuine self defence, sure. Wanting out of the abusive relationship by killing him? That's murder, plain and simple.

 

[WonkyPanda]

To be absolutely fair to Jack, he's not crazy. There are legal scholars out there who question the validity and application of the Perez rule. It's actually fascinating to look into because, in my opinion, the opponents of Perez have some valid arguments. It doesn't help that the Court in Bretz pretty much said, "well, fuck, guys, we've been reading this wrong for about 150 years...but, whatever."

 

[TheBryanJZX90]

Attorney I'm guessing?

Some of you people get so caught up in that cloistered life you completely lose sight of how insane it can look to an outside observer.

If she had killed her husband and stolen his car, and the jury acquitted on murder but was hung on grand theft auto, sure, no problem with retrying her.

Three separate charges for the same action with the option to bring her to a second trial goes against our founding principles. No other way to put it.

You're obviously not attracting a lot of support but one interesting point you bring up is how uncomfortable lay people often are with arguing in the alternative. It's something attorneys often do that will seem quite strange to an outside observer. "Ladies and gentlemen of the jury, my client absolutely unequivocally did not do X. But, if you come to the conclusion that my client did do X, he definitely didn't do Y."