Over the weekend, Assistant State Attorney Anthony Kunasek passed away. Mr. Kunasek was one of two prosecutors handling the trial of Kierra Russ, one of the co-defendants in the shooting at Club Blu several years ago in Fort Myers. Russ is charged with two counts of murder, as well as conspiracy for murder, though she is not alleged to be one of the shooters. The Sheriff’s department and the State Attorney’s Office have confirmed that it was not murder and deemed the death not suspicious. People have been speculating online that there may have been foul play, especially as the sudden death came in the midst of a murder trial with alleged gang affiliations, but there has been no evidence to support that theory, and that is not a likely explanation.
Beyond the tragedy of losing Mr. Kunasek, a long-time employee of the SAO, the State faced a challenge of what do to with the trial. Assistant State Attorney Sara Miller is the lead attorney on the case, and the State has decided to go forward. If the state had decided not to go forward, they could have requested a mistrial under the circumstances. However, had they been granted a mistrial, the Defendant would have challenged the State’s ability to retry the case due to the Constitutional Prohibition against double jeopardy. Generally, the State only gets to try somebody one time. Alternatively, the State could have asked to continue the case for a period of time in order to be prepared to go forward.
This is a sad situation for the legal community. My heart goes out for those who knew Mr. Kunasek, especially his friends and family. I worked with him during my time at the SAO many years ago, and knew him as a talented trial attorney, a sentiment I’ve heard echoed time and again. Condolences for anyone who was affected by his passing.
*UPDATE* The Jury found Kierra Russ Guilty of two counts of second-degree murder and a count of conspiracy to commit murder. She faces life in prison at sentencing on June 6.
I suspect most people don’t realize there is a key legal loophole that allows people to be prosecuted more than once for the same crime. It’s understandable that people would not realize this, as the Fifth Amendment pretty clearly states: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” It’s a principle handed down through the common law, and appears to date all the way back to the Roman Empire. However, U.S. courts have allowed people to be tried, and punished, for duplicate offenses if those offenses are prosecuted in different jurisdictions: State and Federal. That is, even if a state court has tried, convicted, and sentenced someone for a charge in state court, the federal government can also try, convict, and sentence them in federal court. The sentences can even run consecutively, that is, one after the other.
On Monday, the Supreme Court issued a decision in a case, Gamble v. United States, that could have reversed the long-standing exception to the bar on double jeopardy. Instead, a 7-2 majority upheld the double jeopardy exception. The majority opinion found that the separate laws are defined by different sovereigns: although “separate sovereigns” is a judicial construct that does not appear in the Constitution. Mark Joseph Stern at Slate points out that dissenting justices Ginsburg and Gorsuch cite founding father Alexander Hamilton, in the Federalist papers, argue that sovereignty derives from the people and that the federal and state governments are to be regarded as “ONE WHOLE”. So, the two-sovereignty theory fails the framer’s intent test, as well as failing to convince the court’s leading textualist in Gorsuch. The plain language of the Fifth Amendment does not seem to support that the “atom of sovereignty” can be split so as to place a person twice in jeopardy for the same offense.
This is not a change of law, the courts have long upheld the state/federal exception to the bar against double jeopardy. However, for those that have long thought the state of the law did not reflect the intent of the Constitution, this opinion represents a missed opportunity to close this loophole and protect this right of the people.
In a bizarre twist, LAPD announced today that they have a knife in place that was possibly recovered from O.J. Simpson’s estate. Apparently, a retired officer says that a construction worker gave it to him when we was off-duty, but working a detail across the street. It’s unclear, but it may have been when the home was being destroyed in 1998. The officer says that he kept the knife at home, and was getting it framed when he asked a colleague for some details of the case, at which point the colleague informed the higher ups, who ordered the retired cop to turn it over.
The city of Jacksonville released financial numbers indicating the Dunn trial cost taxpayers $99,158.26. These numbers don’t include a lot of important costs, such as the expenses incurred by the State Attorney to prosecute the case. The majority of these costs were for law enforcement overtime, and the costs associated with jury sequestration. Unfortunately for city coffers, the hung jury on the most serious counts mean that a similar retrial is likely. This case cost substantially less to try than the Zimmerman case, and is being used as a model for upcoming cases, such as the Marissa Alexander case. That case will also be a second trial.
Wait, why doesn’t double jeopardy apply to these cases? Because they were not acquitted the first time around. Had they been found not guilty, they could not be tried again. In Dunn’s case, the hung jury on the murder charge essentially
makes the trial on that count a nullity, and it must be retried anew. The convictions on the other charges will stand. As Marissa Alexander was convicted the first time around, she could have let that verdict stand. But since she got the benefit of a new trial being ordered on appeal, she faces the prospect of a new trial. Normally, the sentence cannot be increased on a retrial, as it could be seen as vindictive. However, legal changes may force the judge to order any minimum mandatory sentences under 10/20/Life to be served consecutively. That legal change may force the court’s hand, which would suggest the increased sentence was not due to vindictiveness. Defendant’s are not eligible for gain-time or other early release on a 10/20/Life sentence, which means Ms. Alexander would serve every day of 60 years, less what credit she already had.
Amanda Knox, the American student charged with her roommate’s murder while studying abroad in Italy a few years ago, may be nearing the end of her saga. She was initially convicted of the murder of Meredith Kerchner, along with her former boyfriend Raffaele Sollecito. Separately, a man named Rudy Guede was also convicted of the murder. Prosecutors insist that Knox and Sollecito were involved. The trial was an international media sensation, due in part to Ms. Knox’s attractiveness. The British tabloids dubbed her Foxy Knoxy, and she was condemned in the Italian press even before her trial.
The Italian courts held an appeal, and the convictions against Knox and Sollecito were both thrown out due to lack of evidence. They had already spent four years in prison on the case, and the prosecutors vowed to appeal. That appeal was argued before the Supreme Court, and the Court has announced they will issue their decision tomorrow. If Knox wins, she can finally put this ordeal behind her. If prosecutors are successful, the case will be returned to a lower court, and she could be forced to stand trial again.
Such a retrial would not be permissible under U.S. law, as our Constitution prohibits trying someone twice for the same offense. As such, if it were sent back, the United States may refuse extradition based on our own legal principles. It is too early to speculate and further than that, pending the decision to be issued tomorrow by the Italian court.
Two of the four convictions Ms. Anthony received for lying to police have been thrown out for double jeopardy. The Courts ruled that the state could not convict someone of multiple statements during the same interrogation. Thus the court rejected the theory argued by prosecutor Jeff Ashton in his book, and again by the appellate counsel. The Court also rejected the Defense argument that the interview was single episode. The 5th District Court found that since there were separate interviews, with a significant temporal break between them, that constituted two separate occasions of giving false information. The Court upheld two convictions, and threw out the other two. This doesn’t have a major impact for Ms. Anthony, as she has already served her time for those misdemeanor offenses.
Also, Crimcourts got a chance to watch the movie about Miss Anthony’s case, Prosecuting Casey Anthony, which was based on Jeff Ashton’s book. It was not as one-sided as I was afraid, being based on the prosecutor’s book. Rob Lowe was fine as Ashton, though I have come accustomed to his comedic roles. Oscar Nunez (Oscar from the office) was excellent as Anthony’s attorney Jose Baez… perhaps too polished for Mr. Baez. The movie didn’t capture the tension the case carried in the courtroom. It did show that there was some ambiguity in the evidence but, true to life, Mr. Ashton had his prosecution blinders on. It’s probably only worth watching if you followed the case closely.