In 2007, when Pennsylvania decided to prosecute William Barnes 40 years after the fact for the murder of William Barclay, after Barnes had already served a prison sentence for the attempted murder of Barclay, I asked (Gideon reminds me now), "How does a conviction for attempted murder not jeopardy-bar a prosecution for murder when the victim dies?"
[Update: Mr. Barnes went to trial, and on May 24, 2010 was acquitted of murder.]
I didn't worry about looking up the answer back then—this is not the sort of issue that is likely to recur often. But since the question has now popped up twice, I feel compelled to find the answer.
Thus spake The Court:
Because two offenses are "the same" for double jeopardy purposes unless each requires proof of an additional fact that the other does not, post at 432 U. S. 168, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial, [Footnote 17] and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. [Footnote 18] Cf. Waller v. Florida, 397 U.S. at 397 U. S. 390. Contrary to the suggestion of the Court of Appeals, Iannelli created no exception to these general jeopardy principles for complex statutory crimes. [Footnote 19]
The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post at 432 U. S. 169 n. 7; Blackledge v. Perry, 417 U. S. 21, 417 U. S. 229, and n. 7 (1974); Diaz v. United States, 223 U. S. 442 (1912). See also Ashe v. Swenson, 397 U. S. 436, 397 U. S. 453 n. 7 (1970) (BRENNAN, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.
That's Jeffers v. United States, 432 U.S. 137, 151-52 (1977).
The specific issue—does the Double Jeopardy Clause bar prosecution for an offense where the accused has already been prosecuted for a lesser-included offense where all the events necessary to the greater crime had not taken place when the prosecution for the lesser was begun? was not squarely before The Court in Jeffers, nor in Blackledge.
Diaz dealt with a prosecution for assault followed by a prosecution for murder with the death of the complainant intervening. Here is the double-jeopardy holding in Diaz, in its entirety:
The provision against double jeopardy, in the Philippine civil government act (32 Stat. at L. 691, chap. 1369, 5), is in terms restricted to instances where the second jeopardy is 'for the same offense' as was the first. Gavieres v. United States, 220 U.S. 338 , 55 L. ed. 489, 31 Sup. Ct. Rep. 421. That was not the case here. The homicide charged against the accused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. Com. v. Roby, 12 Pick. 496; State v. Littlefield, 70 Me. 452, 35 Am. Rep. 335; Johnson v. State, 19 Tex. App. 453, 53 Am. Rep. 385. Besides, under the Philippine law, the justice of the peace, although possessed of jurisdiction to try the accused for assault and battery, was without jurisdiction to try him for homicide; and, of course, the jeopardy incident to the trial before the justice did not extend to an offense beyond his jurisdiction. All that could be claimed for that jeopardy was that it protected the accused from being again prosecuted for the assault and battery, and therefore required that the latter be not treated as included, as a lesser offense, in the charge of homicide, as otherwise might have been done under Philippine Comp. Stat. 3284. State v. Littlefield, supra. It follows that the plea of former jeopardy disclosed no obstacle to the prosecution for homicide.
The intervening death of the complainant is not the crux of Diaz. Instead, the distinctness of murder and a conceded lesser-included offense convinced The Court, under Philippine law (and not under the U.S. Constitution) that Diaz could be prosecuted for both assault and murder.
So: the U.S. Supreme Court has said several times that someone in Barnes's position could be prosecuted for murder after taking a conviction for the lesser-included assault.
But when that statement of the law was more than dicta, it was based on the statutory law of the Philippines, before Blockburger, with no discussion of the United States Constitution.
The result in Diaz seems to me wrong under later Double Jeopardy jurisprudence. Under Blockburger, the assault and the murder in Diaz would not have been counted as separate offenses. If Diaz falls, then so do Jeffers and Brown and Blackledge and Ashe, each of which relied on Diaz.
Just as Diaz was twice put in jeopardy for hurting Alcanzaren once, Barnes was twice put in jeopardy for trying to kill Barclay once. Neither did anything between the first prosecution and the second to invite further jeopardy. Neither should have been prosecuted twice.
I try to learn one new thing every day; now I've met my quota.