New Globe is Out!! Top Forensic Expert- Mom Did it!

Discussion in 'Justice for JonBenet Discussion - Public Forum' started by Sabrina, Dec 14, 2006.

  1. cynic

    cynic Member

    Further to my discussion with poster, Questfortrue, regarding Henry Lee’s comment about the law relating to “lesser charges.”

    Given that it’s the Globe, the possibility exists that Lee may have been misquoted because what he said is close to the truth, but as it stands it isn’t true.
    John and/or Patsy could have been tried for a “lesser” charge despite the specter of a looming “higher” charge, so Lee is wrong.
    However, if they were tried on “lesser charges,” regardless of whether the result was a conviction or acquittal (doesn’t matter,) it would have precluded the possibility of further prosecution for murder, as an example.
    The specific rule of law barring further litigation would depend on what the “lesser charge” was, but two legal principals come into play: double jeopardy, and merger/joinder of charges.
    Double jeopardy prevents prosecution of a greater charge if a “lesser included” charge was previously litigated.
    With respect to joinder, (generally speaking,) all charges specific to a criminal “transaction” must be brought forth in a single criminal trial. In this case, the criminal transaction would be the activities that occurred Dec 25 – 26, 1996 which ultimately resulted in the death of JonBenet.
    As an example, although the charge of child abuse resulting in death is NOT a “lesser included” of murder in the first degree, if the Ramseys were to be charged with murder in the first degree it would have to have been tried alongside the child abuse charges.

    • Colorado Revised Statutes 2013
    18-1-301. Second trial barred by former prosecution for same offense.
    (1) If a prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:
    (a) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense even though the conviction is subsequently set aside.

    (b) The former prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
    (c) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction that has not been reversed or vacated, a verdict of guilty that has not been set aside and that is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two instances, failure to enter judgment must be for a reason other than a motion of the defendant.
    (d) The former prosecution was improperly terminated. Except as otherwise provided in subsection (2) of this section, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury is sworn if the case is tried by a jury or after the first prosecution witness is sworn if trial is by court following waiver of jury trial.
    (2) Termination is not improper under any of the following circumstances:
    (a) The defendant consents to the termination or waives his right to object to the termination. The defendant is deemed to have waived all objections to a termination of the trial unless his objections to the order of termination are made of record at the time of the entry thereof.
    (b) The trial court finds that:
    (I) The termination is necessary because it is physically impossible to proceed with the trial in conformity with the law; or
    (II) There is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law; or
    (III) Prejudicial conduct has occurred in or outside the courtroom making it unjust either to the defendant or to the state to proceed with the trial; or
    (IV) The jury is unable to agree upon a verdict; or
    (V) False statements of a juror on voir dire prevent a fair trial.

    18-1-302. Second trial barred by former prosecution for different offense.
    (1) Although a prosecution is for a violation of a different provision of law than a former prosecution or is based on different facts, it is barred by the former prosecution under the following circumstances:
    (a) The former prosecution resulted in an acquittal or a conviction as defined in section 18-1-301 (1) (a) and (1) (c) and the subsequent prosecution is for:
    (I) Any offense of which the defendant could have been convicted under the allegation of the complaint, information, or indictment of the first prosecution; or
    (II) The same conduct, unless the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil or the second offense was not consummated when the former trial began.

    (b) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense.
    (c) The former prosecution was improperly terminated, as improper termination is defined in section 18-1-301 (1) (d) and (2), and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.
    This section must be read to deal with multiple prosecutions in the same jurisdiction since § 18-1-303 sets out the circumstances in which a second trial in Colorado is barred by a former prosecution in another jurisdiction. Clearly, this section cannot be construed to bar separate prosecutions for different state and federal offenses arising out of the same series of transactions, for such trials could not be held in the same court. People v. Hines, 194 Colo. 284, 572 P.2d 467 (1977).
    The test of double jeopardy as to different offenses is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable. Conviction and sentences for two distinct offenses did not put appellees twice in jeopardy where the Colorado statutes separately define the offenses of burglary and assault with intent to rob. Burglary is a crime against property; it is the unlawful entering of a dwelling house or building with the intent to commit larceny or other felony. Assault with intent to rob is a crime directed against a person; it is an unlawful attempt coupled with a present ability to commit a violent injury on the person, with the specific intent to commit robbery. The offenses were separate and independent and the imposition of two consecutive sentences were within the law and did not constitute a violation of any federally protected right. Trujillo v. Patterson, 266 F. Supp. 901 (D. Colo. 1966), aff'd per curiam, 389 F.2d 1003 (10th Cir. 1967).
    Collateral estoppel is an integral part of the concept of double jeopardy. People v. Horvat, 186 Colo. 202, 527 P.2d 47 (1974).
    Simply stated, collateral estoppel bars relitigation between the same parties of issues actually determined at a previous trial. People v. Horvat, 186 Colo. 202, 527 P.2d 47 (1974).
    Subsection (1)(a)(II) is designed to protect a defendant from having to relitigate an issue of ultimate fact once it has been determined by a valid and final judgment. When a previous judgment was based on a general verdict, a court is required to examine the record, taking into account the pleadings, evidence, charge, and other relevant matters, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose. People v. Matheson, 671 P.2d 968 (Colo. App. 1983).
    This section protects a defendant from having to relitigate a factual issue once it has been determined by a valid and final judgment. The doctrine of collateral estoppel generally precludes a later trial if a rational fact-finder could not have grounded its earlier verdict upon an issue other than that upon which a later conviction would necessarily be based. People v. Allen, 944 P.2d 541 (Colo. App. 1996).
    Collateral estoppel and invalidity of dual sovereignty in Colorado barred trial. Where defendant was tried in a municipal court for reckless and careless driving in violation of that municipality's traffic code, he could not later be tried in district court for feloniously inflicting bodily injury while under the influence of intoxicating liquor by operating and driving a motor vehicle in a reckless, negligent, or careless manner, in violation of the state code, because of the doctrine of collateral estoppel, and because dual sovereignty is no longer valid in Colorado. People v. Horvat, 186 Colo. 202, 527 P.2d 47 (1974).
    Compulsory joinder broader than "same offense" principle or collateral estoppel. The compulsory joinder requirement of § 18-1-408 (2) is broader than both the "same offense" principle of double jeopardy as codified in § 18-1-301 and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in this section. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); Corr v. District Court, 661 P.2d 668 (Colo. 1983).
    This statutory prohibition against a later prosecution does not apply if the offense in the later prosecution necessarily requires proof of a fact not required by the former prosecution and the law defining each offense is intended to prevent a substantially different harm or evil. People v. Allen, 944 P.2d 541 (Colo. App. 1996).
    18-1-408. Prosecution of multiple counts for same act.
    (1) When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted of more than one offense if:
    (a) One offense is included in the other, as defined in subsection (5) of this section; or
    (b) One offense consists only of an attempt to commit the other; or
    (c) Inconsistent findings of fact are required to establish the commission of the offenses; or
    (d) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
    (e) The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods or instances of such conduct constitute separate offenses.
    (2 If the several offenses are actually known to the district attorney at the time of commencing the prosecution and were committed within the district attorney's judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (2) requires the district attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution's failure to join the charges, the defendant waives any claim pursuant to this subsection (2) that a subsequent prosecution is prohibited.
    (3) When two or more offenses are charged as required by subsection (2) of this section and they are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (2) of this section, the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences.
    (4) When a defendant is charged with two or more offenses based on the same act or series of acts arising from the same criminal episode, the court, on application of either the defendant or the district attorney, may order any such charge to be tried separately, if it is satisfied that justice so requires.
    (5) A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
    (a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
    (b) It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
    (c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
    (6) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
    (7) If the same conduct is defined as criminal in different enactments or in different sections of this code, the offender may be prosecuted under any one or all of the sections or enactments subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the general assembly at a later date than another unless the later section or enactment specifically repeals the earlier.
    (8) Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant is guilty of a greater offense submitted for the jury's consideration, the retrial of which would be barred by conviction of the lesser offense.
    A. In General.
    Offenses defined in terms of general and specific conduct. Subsection (1)(d) of this section is intended to deal with situations where the offenses themselves are defined in terms of general and specific kinds of conduct. People v. Miller, 199 Colo. 32, 604 P.2d 36 (1979).
    Statutory elements to be satisfied to bar subsequent prosecution. This section can be broken down into the following elements, all of which must be satisfied in order for the bar to apply to a subsequent prosecution: (1) Several offenses committed within the same judicial district; (2) a prosecution against the offender; (3) prosecutorial knowledge of the several offenses at the commencement of the prosecution; (4) the several offenses arising from the same criminal episode; and (5) the offender previously having been subjected to a single prosecution. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Garcia, 735 P.2d 897 (Colo. App. 1986); Williamsen v. People, 735 P.2d 176 (Colo. 1987).
    Test for "same criminal episode" under this section should be identical to the standard for joinder under Crim. P. (8)(a). Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
    The term "same criminal episode" contemplates a joinder standard sufficiently broad to include offenses committed within the same unit of time at the same location, irrespective of whether these offenses are otherwise related to each other by some underlying unity of purpose or scheme. Corr v. District Court, 661 P.2d 668 (Colo. 1983).
    Factors to consider when making the determination as to whether a series of acts arose from the same criminal episode include whether the physical acts were committed simultaneously or in close sequence, whether they occurred in the same place or closely related places, and whether they formed part of a schematic whole. Where the two incidents occurred at different times, at different places, with different victims, and under different circumstances and were not part of any schematic whole, it can be concluded that the two offenses did not arise from the same criminal episode.
    People v. Garcia, 735 P.2d 897 (Colo. App. 1986).
    Test must be interpreted to include the condition that the offenses be connected in such a manner that prosecution of the offenses involve substantially interrelated proof. People v. Rogers, 742 P.2d 912 (Colo. 1987); People v. Miranda, 754 P.2d 377 (Colo. 1988); People v. Patrick, 773 P.2d 575 (Colo. 1989).
    Where a six-day interval existed between the distribution, possession, and conspiracy offenses charged in the separate prosecutions and where there were other factual differences relating to the charges alleged in the separate prosecutions, proof of the offenses at issue involved evidence substantially different from the evidence underlying the former prosecution. People v. Miranda, 754 P.2d 377 (Colo. 1988).
    The purpose of subsection (2) was to prevent the bringing of successive prosecutions based upon essentially the same conduct. People v. Tulipane, 192 Colo. 476, 560 P.2d 94 (1977); Brutcher v. District Court, 195 Colo. 579, 580 P.2d 396 (1978).
    The evil which subsection (2) was designed to cure was harassment of the defendant by means of multiple prosecution for the same act. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974); People v. Tulipane, 192 Colo. 476, 560 P.2d 94 (1977).

    Two illustrative cases:

    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Todd K. ROBINSON, Defendant-Appellant.
    No. 91CA0763.
    Colorado Court of Appeals, Div. V.
    December 9, 1993.

    Defendant, Todd K. Robinson, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of first degree murder, one count of conspiracy to commit first degree murder, and one count of child abuse resulting in death. He also challenges the sentence imposed. We affirm both the judgment and the sentence.
    This case concerns the death of the daughter of defendant's wife. Evidence presented at trial indicated that although the child, age 5½, had suffered from several months of abuse and neglect, she died on August 3, 1989, as a result of a blow or blows to her head.
    At trial, there was abundant evidence of abuse by both defendant and his wife. Defendant's defense was that his wife had killed the child without his aid, agreement, or intention.
    VIII. A.
    Defendant next argues that he cannot be convicted of both first degree murder and child abuse resulting in death when there is only one victim. We disagree.
    Under the doctrines of both merger and double jeopardy, a reviewing court must determine "whether the offenses at issue are the same or whether one is a lesser included offense of the other," and the test for this determination provides "that if each offense requires proof of a fact not required by the other offense, the offenses are sufficiently distinguishable for purposes of double jeopardy" and merger.
    People v. Henderson, 810 P.2d 1058, 1061 (Colo.1991).
    As charged here, to be convicted of murder, the state must prove deliberation and intent to cause death. Section 18-3-102, C.R.S. (1986 Repl.Vol. 8B). In contrast, to be convicted of child abuse that results in death, the prosecution does not have to prove deliberation or intent, but must prove knowing or reckless injury to a child. Thus, neither offense requires proof of the same or less than all of the facts required to establish the other. See People v. Henderson, supra; People v. Valdez, 874 P.2d 415 (Colo.App. 1993).
    Defendant further contends that the rule of lenity prohibits two convictions for a single homicide. We disagree.
    Only one conviction of murder is permitted for the killing of a single victim. People v. Lowe, 660 P.2d 1261 (Colo.1983).
    Here, the convictions are for murder and child abuse, not for two counts of murder. A person commits child abuse if he or she causes injury to a child's life or health or permits a child to be unreasonably placed in a situation which poses a threat of injury to the child's life or health. Section 18-6-401(1), C.R.S. (1986 Repl.Vol. 8A). A conviction for child abuse does not depend on the offense resulting in death.
    Moreover, section 18-6-401(7)(a) provides that, when death or injury results, the offense may range from a class 2 felony to a class 2 misdemeanor. The offense is a class 2 or class 3 felony if the child abuse results in death, but is a class 3 or class 4 felony if the child abuse results in serious bodily injury. If the resulting injury is other than serious bodily injury the child abuse is a class 1 or 2 misdemeanor.
    Thus, we conclude that the fact that a child victim dies is a sentence enhancement factor and not an element of the crime of child abuse. See People v. Longoria, 862 P.2d 266 (Colo.1993) (sentence enhancement statute, section 18-3-405(2)(c), increases the punishment for sexual assault on a child from a class 4 felony to a class 3 felony if the jury also finds that the offense was committed as a part of a pattern of sexual abuse); People *465 v. Henderson, supra; People v. Powell, 716 P.2d 1096 (Colo.1986) (sexual assault is a sentence enhancement factor in second degree kidnapping and conviction of second degree kidnapping does not depend on the sexual assault factor); People v. Huggins, 825 P.2d 1024 (Colo.App.1991) (robbery is a penalty enhancement factor in second degree kidnapping involving robbery). Cf. People v. Valdez, supra.

    The PEOPLE of the State of Colorado, Petitioner, v. Michael R. McCORMICK, Respondent.
    No. 92SC334.
    Supreme Court of Colorado
    October 4, 1993.

    In People v. McCormick, 839 P.2d 474 (Colo.App.1992), the court of appeals reversed the judgments of conviction and sentences imposed on Michael R. McCormick for murder and kidnapping, finding that the compulsory joinder provisions of section 18-1-408(2), 8B C.R.S. (1986), precluded the subsequent prosecution of the murder and kidnapping charges. It also remanded the case for further proceedings based on its determination that an incorrect standard of review was applied in evaluating whether Michael McCormick could enforce a plea agreement. We reverse the judgment of the court of appeals and remand the case to the court of appeals with directions to reinstate the judgments of conviction and sentences imposed for murder and kidnapping, and for review and determination of the issues raised by McCormick but not addressed by the court of appeals, and for further proceedings consistent with this opinion.
    This case arises from the appeals of two separate trials, both held in the Jefferson County District Court. In the first trial, the trial court found Michael McCormick guilty of eleven felony counts related to theft and fraud (the "theft case"). In the second trial, a jury found Michael McCormick guilty of two counts of first-degree murder and one count of second-degree kidnapping (the "murder case"). The court of appeals consolidated the appeals from the two cases, but in deciding the consolidated appeal did not address several issues raised by Michael McCormick. We granted certiorari to determine whether the court of appeals erred in finding that the subsequent prosecution of the murder cases was barred by the compulsory joinder provisions of section 18-1-408(2) and to determine the appropriate standard to be applied in evaluating whether a defendant has breached a plea agreement.
    The first question presented by this appeal concerns whether the compulsory joinder provisions of section 18-1-408(2) preclude the subsequent prosecution of the murder case. We conclude that the prosecution of the murder case was not barred by section 18-1-408(2) under the unique circumstances of this case, in which there was no prosecutor in the murder case at the time jeopardy attached in the theft case, the opportunity for joinder was limited, and joinder would not have furthered the underlying purposes of section 18-1-408(2).
    Section 18-1-408(2) provides:
    If the several offenses are known to the district attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution.
    Section 18-1-408(2) is designed to protect an accused defendant from an oppressive second trial and to preserve judicial and legal resources.
    People v. Bossert, 722 P.2d 998, 1011 (Colo.1986); Jeffrey v. District Court, 626 P.2d 631, 637 (Colo.1981).
    By its terms, section 18-1-408(2) does not impose any requirement on the prosecution to join different offenses at any point. Instead, by extending the constitutional guarantee against double jeopardy, section 18-1-408(2) establishes the specific circumstances under which a subsequent prosecution may be barred. Jeffrey, 626 P.2d at 637. If the prosecution fails to join the charges under such circumstances, *853 either deliberately or by neglect, section 18-1-408(2) precludes the subsequent prosecution.
    We have consistently interpreted the language of section 18-1-408(2) to contain five elements that must be satisfied before a subsequent prosecution is barred: (1) the offenses must have been committed in the same judicial district; (2) there must be a prosecution against the offender; (3) the prosecutor must have had knowledge of the several offenses at the commencement of the prosecution; (4) the offenses must have arisen out of the same criminal episode; and (5) the offender must have been previously subjected to a single prosecution.
    People v. Miranda, 754 P.2d 377, 379 (Colo.1988); People v. Rogers, 742 P.2d 912, 916 (Colo.1987); People v. Taylor, 732 P.2d 1172, 1176 (Colo.1987); People v. Deschamp, 662 P.2d 171, 173 n. 6 (Colo.1983); Jeffrey, 626 P.2d at 637.

    General information:

    … Ashe was tried in a Missouri court on a charge of participating with several confederates in the robbery of one of several persons engaged in a poker game, and was acquitted. A few weeks later, he was tried for the robbery of a second participant, and on the testimony of the same witnesses, was convicted, after a plea of former jeopardy was rejected. The Supreme Court held that the second trial was constitutionally improper, on the basis of the important principle of collateral estoppel, which, said Justice Stewart, "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”
    He pointed out that although collateral estoppel was first developed in civil litigation, it has been a rule of federal criminal law at least since 1916. Clearly, since the first jury found that the accused was not one of the robbers, that made the second trial wholly impermissible.
    The question was not whether Missouri could validly charge Ashe with six separate offenses, and not whether he could have received six punishments if he had been convicted in a single trial of robbing the six victims. “It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.” In a concurring opinion, Justice Brennan protested that the ‘‘same evidence” test was deficient, since it virtually annuls the guaranty by permitting multiple prosecutions where a single transaction is divisible into discrete crimes. He would prefer to hold that normally the Double Jeopardy Clause requires, in the interest of justice, economy, and convenience, that the prosecution join at one trial all charges growing out of a single criminal act.
    It is clear that by one act a person may commit a number of offenses, and therefore expose himself to multiply punishments. This is not, however, the nub of the problem. The question of justice relates to the propriety of permitting separate trials for several offenses committed in the same transaction. For multiple prosecutions are contrary to the policy of the double jeopardy concept of avoiding multiple vexations or the harassment of an unnecessary multiplicity of prosecutions. The remedy lies in the “same transaction” rule, according to which the prosecution must test, in a single trial, the defendant’s criminal liability on all issues that may, logically and conveniently, be tried in one proceeding. It is now the general policy of the federal government that several offenses arising out of a single transaction should be alleged and tried together, in the interest of fairness and orderly law enforcement, and in a series of cases the Court has applied the principle of collateral estoppel to various fact situations in state cases appealed to it.
    Included Offenses
    An acquittal or an unreversed conviction of a lesser offense included within a greater offense prevents a later trial for the greater offense. Thus an acquittal for larceny bars a later prosecution for robbery of the same house for the same money, because robbery could not have been committed without the commission of a larceny as an included inferior offense. By the same token, acquittal for manslaughter is a bar to an indictment for murder, because it is a judicial determination that the accused did not unlawfully take the life of the deceased, and therefore he is not guilty of any offense of which unlawful killing is a necessary element. To put the matter somewhat differently, conviction or acquittal of an offense which has several degrees, as to any degree, bars later prosecution for the same offense in any other degree. Where the defendant has been acquitted or convicted of the greater offense, he has been in jeopardy for all included crimes. Thus an acquittal for robbery bars a prosecution for larceny. Similarly, where the first prosecution was for a lesser offense than the one charged later, there would be double jeopardy if the later prosecution puts the accused in jeopardy for the lesser offense.
    For example, a conviction for battery bars a later prosecution for assault with intent to murder. To put the matter still differently, if the facts put in the second indictment would have justified a conviction under the first, the second offense is the same as the first. Thus a conviction for the manufacture of liquor bars a later prosecution for possession, since manufacture necessarily connotes possession.
    A previous conviction for unlawful cohabitation bars a later prosecution for adultery. The general view, then, is that a lesser offense is necessarily included in a charge of the greater if the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense. It does not matter whether the offenses are felonies, misdemeanors, or both.
    There is one well-recognized exception to the general rule. It is usually held that where a defendant has been convicted of an assault, following which the victim dies, the defendant may later be tried for murder or manslaughter. It has been explained that no murder had occurred at the time of the first trial, and that the state does not have to postpone the
    trial for the assault indefinitely to wait and see whether the victim will die.'
    A special problem arises when a defendant who has been tried for murder and convicted of manslaughter is granted a new trial. The question then arises. For which offense is he triable the second time? The preferable view is that the first conviction for manslaughter is the equivalent of an acquittal for murder, and thus the new trial can be for manslaughter only. It has been explained that otherwise an innocent man would be afraid to appeal, since he would have to pay too great a premium for the privilege of asserting his innocence.'*' But some courts have taken the opposite view, that a new trial reopens the whole proceeding.” Such was the position of the Supreme Court in Trono v. United States, wherein it was ruled that if the defendant is successful on the appeal, he thereby waives his right to avail himself of the former acquittal of the greater offense, since in appealing from the judgment the “accused necessarily appeals from the whole thereof, as well as that which acquits as that which condemns.” But it ought to be noted that four Justices dissented on the ground that the Court’s position was contrary to the great weight of authority. In 1957, in Green v. United States, though again by a 5-4 vote, the Court in effect overruled the Trono case, although Justice Black chose to say that Trono was being distinguished and limited to its “peculiar factual setting.” Green was charged with both arson and first degree murder by means of the alleged arson, and the jury found him guilty of arson and of second degree murder, the verdict being silent on the first degree murder charge. The second degree murder conviction was successfully appealed, following which Green was tried again and convicted of first degree murder under the original indictment. The Supreme Court held that the second trial for first degree murder placed Green in jeopardy twice for the same offense, because the first jury’s verdict was an implicit acquittal on the first degree murder charge. The Court rejected the argument that Green’s appeal was a waiver of his right to the constitutional defense of former jeopardy, and the alternative argument that by appealing Green prolonged his original jeopardy was brushed aside as "untenable.”
    Justice Black said that the government’s contention amounted to saying that a defendant must be willing to barter his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from an erroneous conviction for a lesser offense. This. Justice Black wryly observed, puts this man in
    "an incredible dilemma." The four dissenting Justices thought that this case was governed by Trono, and that actually the Court was overruling Trono. Of course, this is what happened. In fact, by 1970 the Court was in a position to reaffirm the Green decision by a unanimous vote, when it held that after a trial for murder, and a conviction for the lesser included crime of voluntary manslaughter, the defendant could not, after a successful appeal, be put on trial again for murder.' Acquittals may be either express or implied, and the conviction for manslaughter at the first trial must be regarded as an implied acquittal on the murder charge.
    It remains to be noted that an accused may not be convicted for two offenses which require inconsistent findings of fact. For example, one cannot be convicted of both grand theft and driving a vehicle without the consent of the owner, since the first offense requires a showing of specific felonious intent to deprive the owner of his property permanently…
    Pages 378-381 Defendant's Rights Today&f=false
    Last edited: Feb 6, 2015
  2. Elle

    Elle Member

    Yes! It could have been Patsy Ramsey!

    Thank you for posting this information,
    Cherokee. I have always thought
    Patsy Ramsey was responsible for little JonBenét's death; as Tricia states "In a fit of fury."
  3. questfortrue

    questfortrue Member

    Comments to cynic's explanation regarding dbl jeopardy and joinder

    Thank you, cynic, for the statutes and legal background regarding the issues of trying someone on a lesser charge. I’ve wondered about that for a while. As an aside, though, the Globe likely did quote Lee correctly because Lee says in his own book, “. . . under Colorado laws, an accessory could not be arrested unless the principal to the crime had already been charged."

    From the time stamp of the Globe, looks like Lee made those comments in December 2006. But that last quote of Lee’s regarding the discouragement AH suffered over trying to take the case to court - "It broke his heart, but he knew I was right - the case at that point was unwinnable" - jeesh. Kinda makes you wonder what they actually shared with Lee. While I’m sure the BPD and DA’s office provided forensic information to him since he was acting as a consultant, it seems pretty doubtful that he knew the “whole†story behind this case.

    Both AH and Lee speak as though the reason it couldn’t be tried is because there’s not the evidence to support the most serious charges (murder in the first or felony murder). Lee actually met with Hunter shortly before the Grand Jury ended, stayed at his house and poured over the evidence. He conveys in his book Cracking More Cases that he supported AH’s conclusion that the case could not be successfully tried. In fact, Lee called AH valiant. (Suppose it’s a reliable trend for consultants to support the person or organization who hires them.)

    I guess what I’m getting at is the disconnect between the sound bites – we can’t take it to trial because we can’t resolve who to charge with her homicide and we have to have a principal to charge first – and the sense that the Grand Jury seemed to infer a third person ‘off stage’ was responsible for her death. This third person (BR) could not be charged or mentioned since he was underage. And Hunter sat in on the Grand Jury sessions, according to Lee. So Hunter would know what evidence was introduced to support the GJ’s True Bills. No matter what AH said about lack of evidence to try for the homicide, it wasn’t the reason he chose to hide the True Bills in the safe. Perhaps Lee believed AH’s lame public excuse, but not me.

    I think Lee was in the dark about much in this case and his role limited to evaluating forensic evidence. After 2008 when ML had given a parting present of her “exoneration letterâ€, Lee made some interesting comments to the Daily Camera. Like others here, he wondered if ML had tested the ligature cord for TDNA, wondered about the RN, and wouldn’t venture a Real opinion about that exoneration letter “It’s all subject to interpretation,†he said. “That is a legal issue and up to the district attorney.â€

    Well, if nothing else, Lee nailed it with that last comment. – it being up to the DA. That it was, Dr. Lee. Cue in Prendergast’s article How an Indictment became an Exoneration.
  4. cynic

    cynic Member

    Henry Lee’s mistake was listening to Hunter whose primary grasp of the law was in the realm of plea bargaining. (The bar must have been set low when Hunter passed the bar.) :D

    To be clear, there were a number of “lesser charges†which could have been charged if the intention was never to "go for the gold," so to speak.
    The GJ true bills of indictment contained what were arguably “lesser charges†in that they were not murder in the first degree, however, the child abuse resulting in death charges were extremely serious. A Class 2 felony carries a sentence range of four to 48 years in prison. (The statute of limitations is three years from the date of the crime.)
    I should also underscore that the term “accessory†which in present (and 1996) Colorado law refers to what is in general legal terms, accessory after the fact.
    In other States, there may also be defined: accessory before the fact and principal in the second degree (or what amounts to accessory during the fact.)
    In Colorado they lumped accessory before and during the fact under the legal theory of complicity and therefore the “accessory†becomes an accomplice and is subject to the same legal penalty as the principal. It should be noted that there does not need to be an identification of a principal, the participants may all be treated as principals.
    (This effectively negates the cross finger-pointing defense.)
    The jury instruction on the law reads as follows:
    A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established by the prosecution beyond a reasonable doubt:
    1. A crime must have been committed.
    2. Another person must have committed all or part of the crime.
    3. The defendant must have had knowledge that the other person intended to commit all or part of the crime.
    4 The defendant must have had the intent to promote or facilitate the commission of the crime.
    5. The defendant must have aided, abetted, advised, or encouraged the other person in the commission or planning of the crime.


    Getting back to Lee and Hunter…
    The comment in Lee’s book is a reiteration of what Schiller attributes to Hunter.
    Schiller’s footnote reflects legal reality.
    In addition, the DA believed that under Colorado law an accessory could be charged only when a principal was charged.* Harder evidence would be needed to charge a perpetrator.
    The footnote says:
    *This is not Colorado law. The successful prosecution of an accessory does not require the charging of a principal. Howard v. People, 51 P.2d 594(1935); Britto v. People, 497 P 2d 325 (1972)

    Perfect Murder, Perfect Town, Lawrence Schiller, page 422

    Some cases to illustrate the legal point:

    Britto v. People, Supreme Court of Colorado, May 8, 1972.
    It is inconsequential whether or not the principal was ever charged with the criminal offense. Oaks v. People, 161 Colo. 561, 424 P.2d 115 (1967).

    Oaks v. Patterson, 278 F. Supp. 703 (D. Colo. 1968)
    The State of Colorado has held that the accessory is subject to independent prosecution and can be convicted even though the principal actor has been neither charged nor convicted of an offense. Roberts v. People, 103 Colo. 250, 87 P.2d 251 (1938). Upon this basis an accessory can also be convicted although the principal actor has pled guilty to a lesser included offense. Oaks v. People, Colo., 424 P.2d 115, 117.

    Roberts v. People, Supreme Court of Colorado, September 19, 1938
    Butler's body was discovered in a well twenty-five miles from his ranch about six weeks after his disappearance. A piece of railroad iron was tied around his neck. An autopsy disclosed two skull fractures on the back of the head occasioned by some blunt instrument or instruments, either of which was sufficient, according to medical testimony, to cause death. The evidence is not controverted that Wier hauled the body from the Butler ranch to the well in Butler's car, Roberts following or preceding Wier in his own car. Neither is it disputed that Roberts assisted in unloading the body, and that Wier tied the weight to it and threw it into the well. On the return trip Wier poured gasoline over the Butler car and burned it, and Roberts then returned Wier to his ranch. From the date of this occurrence until subsequent to the time of the discovery of the body, Roberts, though questioned on numerous occasions by the officers investigating Butler's disappearance, repeatedly denied all knowledge of his whereabouts or what had happened to deceased. Finally Roberts and Wier both were arrested and each then accused the other of the murder; Roberts accusing Wier of killing Butler in his house with an axe, and Wier accusing Roberts of killing him with a chair. The two were charged with Butler's murder and obtained a severance for trial. On separate trials each was acquitted. The district attorney then, after Roberts' acquittal he being tried first, charged Roberts substantially in the language of the statute with being an accessory after the fact to Butler's murder by Wier. After Wier's acquittal of murder the district attorney amended the information charging the homicide to have been committed by a person or persons unknown to the district attorney, and Wier likewise was charged as an accessory to the murder of Butler by a person or persons unknown. Roberts was placed on trial on the accessory charge first. As soon as the jury retired to deliberate on his case, Wier was placed on trial on the accessory charge against him. The Roberts' jury returned a verdict of guilty while the Wier trial was in progress and thereupon with the consent of the court the district attorney dismissed the accessory charge against Wier
  5. questfortrue

    questfortrue Member

    Cynic, thanks again for shining more light on that issue of AH proclaiming that they wanted to “go for the gold†so to speak, and what he actually chose to do. Child abuse charges are very serious. Just my take, and of course the disclaimer I’m no attorney, but it seems that the GJ handed off what they felt was achievable in a court of law. IIRC, one CO attorney even thought it was a compromise decision.

    When I reviewed the Midyettes’ charges and convictions in Boulder it enlightened me a little further. Molly Midyette was given 3 charges of child abuse, to fit three different theories.

    In the charges against Molly it was explained this way: Each count charged against the Defendant is charged under C.R.S. 18-6-401. Under that statute, a person can commit child abuse resulting in death in several different ways. A person commits child abuse "if such person causes an injury to a child's life or health OR permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, OR engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or the accumulation of injuries that ultimately results in the death or a child . . ." These are alternate ways of committing a single crime--child abuse resulting in death. (The defendant in this case is not charged with causing an injury to Jason Midyette's life or health, resulting in death-only the co-defendant Alex Midyette is charged with that portion of the statute).

    The prosecution referenced other cases in order to be clear on why they levied three child abuse charges against her. In Lowe, the Colorado court held that although a defendant can only be convicted of and sentenced on one conviction of homicide for the death of one victim, the prosecution may, nevertheless charge the defendant in separate counts for different theories of murder. In addition, the Court held that ''The prosecution may, but should not be required to, elect among theories after the evidence is closed. If there is sufficient evidence in the record, all theories charged should be submitted to the jury for a special verdict. The jury should be informed that the defendant is charged with one crime, first degree murder. The jury's special verdict should indicate which theories of first degree murder, if any, have been proved by the evidence," Lowe at 1274 (emphasis added).

    Continuing with the Midyette charges: In the case before the Court, the People have made efforts to protect the record and avoid confusion on the part of the jury by providing each theory of child abuse in a separate charge. According to the Lowe court, such a proceeding is proper and preferable to a general verdict. "This procedure will avoid substantial double jeopardy questions being raised if the jury is forced to acquit on one theory in order to convict on a theory which is found to be erroneous on appeal." Lowe, at 1275.

    The People should not be required to elect a theory in this case or choose between counts. Nor should the People be required to merge the charges into a single count for a general verdict. At the close of the evidence, the People will provide a jury form, based on the form outlined in the Lowe case, to submit to the jury. The jury will be informed that the defendant can only be convicted of one charge of child abuse resulting in death, but may consider all theories as set out in the various counts.

    One of the grand jurors of the R case gave voice to the opinion that the Rs could have gotten JB help, and they didn’t. IMO, that was a powerful statement in its implications. (Note above the phrasing in the child abuse statute applying to Midyettes' about lack of medical care.) While some may disagree with me here, it’s not as though JB were cared for and protected by aliens in the home. Two adults were there.

  6. BOESP

    BOESP Member

    Thank you, Cynic.

    To me the status of this sad case can be summed up in two quotes from Cynic's above post:

    "The case ended with Patsy's death."

    And Cynic's comment, " A Class 2 felony carries a sentence range of four to 48 years in prison. (The statute of limitations is three years from the date of the crime.)"

    Thanks for all the work you've done and shared for us here and at Websleuths.
  7. DeeDee

    DeeDee Member

    Bottom line for ME? BR molested her and bashed her on the head when she screamed. The parents (Patsy still dressed in her party clothes as she finished up preparations for the trip to Charlevoix), staged the crime scene after sending BR to his room (where he was told to STAY). This fits ALL the pieces together for me.
    It explains Patsy and JR's fibers present on the body and items used in the crime (paintbrush and tote, duct tape from JB's mouth, JB's interior panty crotch). On the secondary tier of fiber evidence would be Patsy's forearm hair on the white blanket, Patsy's and BR's tDNA on the pink nightie, Patsy and BR's prints on the pineapple bowl/glass and dark cotton fibers that MAY match JR's navy terry bathrobe.
    It explains a LOT as far as the GJ indictments. There was no need to worry about the "cross finger-pointing" defense. As mentioned- the principal perp was underage and could not be named. Neither could the accessories/accomplices be indicted because doing so would reveal the identity of the underage perp. This would likely be the case even though the accomplices committed a crime in and of itself- tampering with evidence (including the body), obstructing justice.
    All AH had to do was stall long enough for THOSE charges to be beyond the statutes of limitation and it was assured that this case would never see the inside of a courtroom.
    BDI with parental coverup is the ONLY thing that explains it all, IMO.
  8. BOESP

    BOESP Member

    I'm still leaning toward a possible event involving JonBenet and Burke that precipitated actions from Patsy that resulted in JonBenet's death. That fits both Kolar and Thomas's findings as published in their books as well as fitting the true bill.

    I don't read the GJ true bill as necessarily involving Burke because it could also be interpreted, imo, as Patsy or John covering for each other or, for that matter, a third individual.

    I will go to my grave believing Patsy wrote the note.
  9. Thor

    Thor Active Member

    I agree 100% with this.
  10. Elle

    Elle Member

    Yes, Thor, I agree with BOESP too. It could have happened this way!

  11. DeeDee

    DeeDee Member

    I cannot see why this indictment would not have gone forward if it was just Patsy & JR covering for each other. The cross-fingerpointing defense would not have been an issue in this case, as Colorado law would hold each responsible. To me, the ONLY reason I see this case as being stopped cold was if the one who started it all that night (the sexual assault and head bash) was under 10.
  12. BOESP

    BOESP Member

    I'm not sure the cross-fingerpointing defense was why the indictment was not filed. Could be but it is such a cleverly worded true bill and we didn't get to see all of the document (iirc).

    My very unlearned opinion is Alex Hunter saw no reason to drag the dirty linen in public for a case against people who "didn't mean for this to happen."

    I suspect Hunter felt the Ramseys were punished enough by the outcome of events on the night JonBenet died. I suspect he saw no reason to spend taxpayer money for such a sad case and for one which had already delivered the ultimate punishment.

    In a lot of ways, I truly feel sorry for Patsy Ramsey.
  13. BOESP

    BOESP Member

    Just to clear up my post from yesterday: I am no way/no how a Ramsey or Hunter apologist.

    I should have stated that my above post is only partly why I think Hunter avoided filing an indictment. There are other less kind reasons such as possible conflict(s) of interest; fear of loosing; and probably other underlying reasons.

    I still think Patsy is the most likely suspect but we all have our opinions.
  14. Elle

    Elle Member

    I haven't been involved so much with
    posting on a regular basis BOESP, in the way I used to post. Haven't had the time
    due to changes in our lives being Seniors,
    but like you, I feel Patsy is the most likely

    Young Burke according to what I remember reading was very much into himself and
    not involved with JonBenét a great deal.
    He was very much involved in playing with his own hand held games according to what I remember reading, plus I believe he hit JonBenét with a golf club if I remember correctly. I cannot see a boy like this
    fawning over a younger sister in a sexual manner.

    I cannot get over the number of times
    young JonBenét was taken to her doctor
    by Patsy. I personally think Burke didn't
    like his young sister her too much at all!
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