An interesting case was recently decided in Virginia that has potential implications across all jurisdictions. It is more a strategy than anything else, and certainly the concept is not new. But it worth recalling from time-to-time, that the basics are still alive and well — even to beat a murder charge.

It is fundamental criminal law that each and every element must be proven by the state “beyond a reasonable doubt.” (See Patterson v. New York, 432 U.S. 97 (1977), although this case also stood for the proposition that the state is not required to disprove defenses in order to convict. That’s the topic of a different discussion, however). One strategy to defend a case is bifurcation — split the elements across multiple crimes, then get one of the crimes dismissed. If successful, you have knocked out an element of the underlying felonies, and the entire government case falls apart.

That’s what happened in this recent VA case. The case, Commonwealth v. Davis, was decided 29 October 2015. Davis was accused of first-degree murder, maliciously shooting into an occupied vehicle, use of a firearm in the commission of a felony. Oddly, he was also charged with reckless handling of a firearm, a misdemeanor. This is odd, because it opens the State for a drubbing. Remember – if the defense can beat a misdemeanor that contains a required element of the underlying felonies — it’s over, folks. In a brilliant bit of legal maneuvering, the defense smashed the State’s case for the misd (slang for “misdemeanor”, and pronounced “miss-dee”), prior to the hearings regarding the felonies. This was done by accelerating the hearing for the misd gun charge. The misd was dismissed by the Court, and because possession of a firearm was an element of the felonies, they all collapsed at the preliminary hearing.

Unfortunately for our good friend, Davis, VA has a provision that allows for a direct indictment even after a prelim fails. Some of us think this is a double bite at the proverbial criminal apple, but alas, it ’tis what it is. So, they direct indicted him on the felonies. Of course, that couldn’t work either. If the judge cleared him of the underlying misd gun charge (dismiss), to attempt to charge him with a gun crime stemming from the same set of facts constituted double jeopardy and was not permitted.

In summary:

The Court of Appeals reversed Defendant’s convictions and dismissed the indictments, holding that the Commonwealth was collaterally estopped from prosecuting Defendant for murder or attempted murder after Defendant’s acquittal of reckless handling of a firearm. The Supreme Court affirmed, holding that because Defendant’s misdemeanor acquittal and subsequent felony convictions were based on the same issue of ultimate fact, the felony convictions were barred by the prohibition of double jeopardy.

The Takeaway: When the government tries to charge both misdemeanor and felony charges, target the misdemeanor and stall on the felonies. Get the misdemeanor dismissed or beat it at trial – you need a substantive disposition in your favor. Nolle prosequi won’t do it, as it is not a determinative disposition on the underlying charges. Once you have victory on the misd, kick the felony. It can be challenging to force the misd before the felony, but you need to work angles to get it done. You don’t need a prelim to challenge the misd — so move quickly to bring that to court. Note that federal court rarely lists all charges pre-indictment, so knocking some aspect of the case out by resolving a misd prior to indictment may be of dubious value; but it can have devastating consequences at the preliminary hearing.

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