Today in Supreme Court History: April 27, 1822

4/27/1822: President Ulysses S. Grant's birthday. He would appoint four Justices to the Supreme Court: Chief Justice Waite, Justice Strong, Justice Bradley, and Justice Hunt.

President Grant's appointees

Comments

[Dan Schiavetta]

AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (decided April 27, 2011): Federal Arbitration Act preempts California common law rule against arbitration clauses in consumer contracts (dismissing suit by customers alleging that cell phone “giveaway” was fraudulent because sales tax added to bill)

United States v. Sun-Diamond Growers of California, 526 U.S. 398 (decided April 27, 1999): Agriculture Secretary Mike Espy was one of the only two people in the much-investigated Clinton Administration who actually got indicted (the other was Henry Cisneros). The indictment was for receiving improper gifts (for which he was acquitted). In a probably related case, a lobbyist was charged with giving him $5,900 in “gratuities” (food, hotel rooms, tickets to sports events, etc.). Court holds that the gratuities statute (18 U.S.C. §201(c)(1)(A)) does not apply because there is no showing of what Espy did in return for the gifts (how often can such a showing really be made?).

Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (decided April 27, 2020): not a copyright infringement to reprint official annotated code (well, duh! hard to believe Georgia sued over this -- the Court says the fact that the code contains annotations makes this case “different” but for a lot of states the official code is an annotated one)

City of Chicago v. Fieldcrest Dairies, 316 U.S. 168 (decided April 27, 1942): whether a city ordinance conflicts with state law (here, over whether milk can be sold in paper containers) should be decided by state courts even though technically federal court also has jurisdiction due to “lurking” Constitutional issue (not named but probably Due Process)

Montana v. Hall, 481 U.S. 400 (decided April 27, 1987): no Double Jeopardy problem with trying defendant for sexual assault after first conviction (for incest with stepchild) was reversed based on incest against stepchildren statute not yet being in effect at time of crime

U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1 (decided April 27, 1977): Contracts Clause (as to Port Authority’s contracts with bondholders) was violated by New Jersey - New York agreement retroactively changing funding mechanism (for decades Robert Moses held king-like power over large sections of New York State because the Contracts Clause kept governors and mayors from interfering with his arrangements with bondholders of his “public authorities”; this ended with Gov. Rockefeller whose brother David’s bank, Chase, held the bonds and dropped all objections)

Hampton v. United States, 425 U.S. 484 (decided April 27, 1976): informant gave defendant heroin which he then sold to undercover police officer; no entrapment because defendant was predisposed to commit crime (he had already offered to buy it for another informant who had heroin tracks on his arm)

Tooahnippah v. Hickel, 397 U.S. 598 (decided April 27, 1970): Will by Native American disposing of allotted land can’t be invalidated by Secretary of the Interior (who has to approve it, 25 U.S.C. §373) so long as it’s rational (doesn’t matter if it seems inequitable)

Harman v. Forssenius, 380 U.S. 528 (decided April 27, 1965): Twenty-Fourth Amendment (invalidating poll taxes for federal elections) violated by Virginia statute requiring either paying poll tax or supplying certificate of residence

Giles v. Harris, 189 U.S. 475 (decided April 27, 1903): federal court can’t order state to register black persons prohibited by state “reverse grandfather clause” statute from being registered (i.e., can only vote if your [necessarily white] grandfather could vote) (this decision was in effect later overruled)

[A Japanese Student]

Japanese law allows consumers to opt out of predispute arbitration agreements in consumer disputes. (In fact, consumers must give express waiver, at oral hearings held by arbitrator, to make the agreement binding.) Supplementary Provisions to Arbitration Act, §3. Employment disputes can never be arbitrated. §4

California still recognizes one judicially created exception to FAA, known as the McGill rule (from McGill v. Citibank). If I remember correctly, the rule is that agreements waiving the right to seek public injunctive reliefs in court cannot be enforced. "Public injunctive relief" is an injunctive relief against violations of law, intended to benefit the public as a whole.

[A Japanese Student]

In Georgia v. PRO, the main question was whether the Code was copyrightable at all (i.e. not fair use).

State government is generally entitled to hold copyright of its own work (unlike the federal government, 17 USC §105). The "government edicts doctrine", which originated from disputes with the Court's own Reporter of Decision in the 19th century, denies copyright to the law. Georgia's position was that, since the annotation can be separated from the actual laws (which both agree were not copyrightable), the annotation can be copyrighted. The case could have been decided differently if the annotation was prepared by an entity separate from the law-making authority (i.e. the Legislature).

One of the many consequences of that doctrine is that, when a standard is adopted as law, that standard loses copyright protection. This is a bad news for standardization organization because they make money from selling copies. Veeck v. Southern Bldg. Code Congress Int'l, Inc., 293 F.3d 791 (CA5 2002); American Society for Testing and Materials v. Public.Resource.Org, (insert citation) (CADC 2023). Congress narrowly avoided overturning that decision last year, H.R. 1631 (118th Congress) (vote failed 248-127; 2/3 required for passage).

Many countries, including Japan, have a codified government-edicts exemption. See Copyright Act of Japan, §13 (exempting laws, Government notices, judicial and administrative decisions, and "translations and compilations" created by the Government); Copyright Act of North Korea, §12 (yes, apparently that exists).

[A Japanese Student]

Correction: ASTM 2023 was resolved on fair use grounds, not government edicts doctrine. Whoops.

[Dan Schiavetta]

Thanks!

[Purple Martin]

Georgia v. Public.Resource.Org Inc. I'm too lazy to look it up, but I was working a several-month Infosec consulting project in Atlanta in 1999-2000 (Marietta actually, which probably gives away the client to some). The case got a lot of coverage while I was there and I had some extra interest because of the legal consulting contracts involved (lots of such legal implications in Infosec consulting, which fortunately I could leave to IBM's very good attorneys, but still had to know what was involved).

Georgia had a long term relationship with a local legal consulting firm (don't remember the name) who took the state code statutes passed by the legislature, added substantial annotations and hypothetical examples, and published what was by law, the official state version to be used in the judicial system.

By law and contract, the consultant held the copyright, owned the product, and granted the state a permanent, irrevocable, license to use the Annotated Code for the State of Georgia for any government use short of selling it to others. I'm pretty sure the state was contractually obligated (indemnification?) to defend the consultant (guess they had pretty good lawyers too).

Public.Resource.Org was and is, per Wikipedia, is:

a 501 non-profit corporation dedicated to publishing and sharing public domain materials in the United States and internationally. It was founded by Carl Malamud and is based in Sebastopol, California.

...and sued for the right to include it in its efforts to provide a public domain repository of all such State Codes. And eventually won.

Our lawyers took great interest in the case, and told me it made a difference in our own consulting contracts, both government and commercial. It caused a lot of states to review and update their own similar practices.

[Dan Schiavetta]

The state (or the judiciary) shouldn’t farm out analyses to private firms. Not that the analyses are incorrect, just out of touch.

Some years ago I was in one of the meatball divisions of the Kings County (Brooklyn) courthouse. Accidentally I took back to the office a guidebook for the law secretaries (the ones who recommend the decisions for the judges to make). It was written by a “white shoe” firm and, though correct insofar as its analysis of reported case law, was wildly off the mark as to how things are actually done. It’s very unlikely any of those starting-at-six-figures-a-year-as-first-year-associates, let alone their seven-figures partner bosses, ever set foot in that courtroom.

[Krayt]

Decades ago I wrote a tax auditor expert system for the state to help tax auditors do their jobs on their newfangled laptops. We couldn't just call up the laws because they were copyrighted, or maybe it was annotations, but in any case we just put pointers into their tax law book that went along with it.

Best memory was a description: remember, this is not an income tax. It is a tax proportional to income. I assume that guy went on to bigger and better stuff, like trying to define speech as behavior so it can be regulated.

[JoeFromtheBronx]

Happy Birthday to the man who led the forces to defeat an insurrection. That is a way to go.

[Frank Drackman]

Way to root for the underdog Joe, let me guess, you’re a Yankees fan? By your logic George Washington led an “Insurection” But you’re right, South should have officially stayed in the Union, like the Slave states of Missouri, Kentucky, Delaware and Maryland, Lincoln’s Emancipation wouldn’t have applied to them and they could have kept their Slaves, like Grant did, they could have resisted informally like they did with integration, which didn’t really start until the 60’s in the South, and 70’s up north (where it even happened at all)

[not guilty]

Of course the American Revolution and the American Civil War were insurrections. The latter was treason in service of human chattel slavery.

On balance, the beneficial results of the Civil War -- preservation of the union, adoption of the Reconstruction amendments to the constitution and an end to slavery -- outweighed the bad, but at a horrific cost -- hundreds of thousands of deaths on both sides and the first assassination of an American president.

[Frank Drackman]

If the latter was in service of slavery so was the first, as every Colony tried slavery at some point (Vermont just couldn’t make it work, didn’t take many slaves to tap Maple trees, and Canada was literally a hop, skip, and jump away.
I’m glad the South “lost”, I’d rather pay Mexicans to do the menial labor and the North got the dubious pleasure of Al Sharpton and his ilk
I like Lincoln too, when I was 10 my “warroom” bulletin board had photos of JFK, Nixon, and Lincoln (my politics were a bit confused)

Frank

[not guilty]

Both struggles involved treason -- the first against the Crown, and the second against the federal Union. However, defense of slavery motivated the Confederates, but not the Colonials, to fight.

Although the slave holding states fared well at the Constitutional Convention held in 1987. The three-fifths compromise gave the slave states disproportionate representation in Congress and in the Electoral College's selection of the President.

[Stupid Government Tricks]

The North didn't hate slavery nearly as much as they hated that 3/5 clause giving the slavocracy so much undeserved power. Why not count cattle and horses as 1/10th if Africans were subhumans?

I used to not think that; rather that the North had fought to end slavery because they were noble and all that. But the way Slaughterhouse gutted the 14th Amendment and Congress made no move to resuscitate it just 5 years after it was ratified made me change my mind. The slavocracy had lost its 3/5 power and that was all that mattered. Never mind that once Reconstruction was over, the slavocracy had 5/5 power. It took another hundred years to get rid of that.

[Malika the Maiz]

Slaughterhouse was decided almost a decade after the finish of the War and also just a few years before the Hayes-Tilden Compromise, so I’m not sure the fact that Congress didn’t “move to resuscitate” the 14th it says much about the Union’s earlier motivations but rather changing political realities.

[Stupid Government Tricks]

14th Amendment was ratified in 1868. Slaughterhouse was 1873. 5 years.

Both pro and con of the 14th Amendment agreed it did what Slaughterhouse claimed it did not: apply the entire Bill of Rights to the states. That Congress refused to correct the Court is what shows the changing political climate, and that's what I said.

So buzz off.

[Malika the Maiz]

The 14th was written in 66. It’s also certainly not clear that the proponents and opponents thought it would simply apply the BoR to the States (in fact much early conservative originalist scholarship thought that was ridiculous, e.g., Raoul Berger).

[Stupid Government Tricks]

Yes, dearie, but it was ratified in 1868, and the political winds had not yet changed or it wouldn't have been ratified. Please pay attention.

The debates I have read included lots of speeches and newspaper editorials, pro and con. Of course it wasn't unanimous, but maybe you include all the southern racists on your side. I don't know.

[Malika the Maiz]

It didn’t change wording from its drafting to its ratification, but living up to your Stupid handle you don’t get that the pertinent date here is when the Slaughterhouse opinion came out-just a few years before Hayes-Tilden.

“The debates I have read”

Which probably are not much, very representative or well understood by yourself, of course.

“maybe you include all the southern racists on your side.”

This is double funny, first because you claimed both sides agreed on what it included and second we all know which side loves them some Confederate racists right now (they’re the ones fighting to continue to have them honored with base names, statues, etc.).

“I don't know.”

This we agree on!

[Stupid Government Tricks]

Silly proggie. My point was that the political winds had changed from 14th to Slaughterhouse. The relevant dates are as I said. I don't know why you think picking different and irrelevant dates makes you look smart and me look dumb.

And then you upbraid me for no references while providing none yourself. I don't know why you think Trumpies today have anything to do with a five year span of history 150 years ago. I think you just plain don't think.

[Malika the Maiz]

lol, the political winds changed in 1876 proving that the Union of 1861 didn’t care about slaves!

You should have stuck with your “I don’t know.”

[Stupid Government Tricks]

No, dearie, 1868 and 1873. Please pay attention.

[Malika the Maiz]

You said the failure of the “North” to “resuscitate” the 14th after the Slaughterhouse decision proved to you that the 1861 Union didn’t care about slaves. Among other logical holes there’s the fact that one year after Slaughterhouse party control of the House changed.

Again, you should stick with “I don’t know.”

[Stupid Government Tricks]

Please quote my exact words where I said that.

^F1861 shows you are the only one saying 1861.

[Malika the Maiz]

The sad, desperate person who has made up the “Frank Drackman” personae to post here agrees with many DEI proponents that the American Revolution was, like the Civil War, about slavery. MAGA attracts some deranged deplorable!

[Frank Drackman]

The obsession store called, they want your obsession back, how’s it feel to be a spectator in Frankie-world?

[Malika the Maiz]

This poor weirdo literally plays a character on an anonymous legal website comment board. MAGA sure attracts some pathetic nuts!

[NvEric]

Frank is a much valued voice and a fixture with insights not found elsewhere. We each have our roles to make the world what it is.

[Malika the Maiz]

And don’t get NvEric started on his main man the Qanon Shaman!

Conservative populism, folks!

[Dan Schiavetta]

A good man. Also a terrific writer. I bought his memoirs mostly for the prose.

[The Margrave of Azilia]

He had only the best help with his writing.

https://www.biography.com/authors-writers/mark-twain-ulysses-s-grant-friendship

[Dan Schiavetta]

Twain arranged the deal and the marketing, but I don't think he did any of the writing. For one thing, the style of the memoirs does not sound like Twain. For another, Grant had a lot of experience as a writer -- during the war to write dozens of orders every week. They had to be short and clear. The memoirs are such.

[The Margrave of Azilia]

From the link:

"Twain was a frequent visitor, consoling his friend and revising the manuscript with Grant, sometimes passing notes back and forth when Grant was eventually unable to even speak."

[O Tempora]

He is underrated as president, largely because other Republicans in the government became involved in the Credit Mobilier scandal. He was one of our greatest generals, by far our best military/political memoirist, and a decent human being. His surrender terms at Appomattox helped to start the healing process after the Civil War. Sadly, he's out of fashion now. PBS did a 3-part special on Grant that is worth watching.

[The Margrave of Azilia]

I thought we were seeing kind of a Grant revival in recent years. At the very least, his Reconstruction record is being rehabilitated. He was the first - and for many years, the only - "civil rights President."

[Bob from Ohio]

"helped to start the healing process after the Civil War."

Sadly, that is out of fashion now. The current politically correct view is damn those traitors, should have hung Lee etc.

[Dan Schiavetta]

The limping veterans are long dead, as are all the grieving relatives.
What is pushed for now is not "healing" but "celebrating antebellum slavery".

[Malika the Maiz]

One thing Bob loves generally is conciliation!

[Estragon]

“I felt like anything rather than rejoicing at the downfall of a foe who had fought so long and valiantly, and had suffered so much for a cause, though that cause was, I believe, one of the worst for which a people ever fought, and one for which there was the least excuse.”

[Mr. Bumble]

The man (much like his neglected tomb in upper Manhattan) has not gotten the respect he deserves.

[Estragon]

The tomb is in way better shape than it was in the 90s, happily. Doge cuts to NPS funding is most assuredly not going to help.

[Mr. Bumble]

No need for the gratuitous swipe at DOGE.
The site has seen its ups and down since its inception and that includes being under NPS since 1959.
Biggest problem is probably its out of the way location.
"In his will, Grant had indicated that he wished to be interred in St. Louis, Missouri, or Galena, Illinois, where his family owned plots in local cemeteries, or in New York City, where he had lived in his final years.[12] His friend, publisher George William Childs, said the president had previously expressed a desire to be buried at the Old Soldier's Home in Washington, D.C., or at West Point.[15] Ulysses wanted his wife Julia to eventually be interred next to him; this eliminated military cemeteries and installations such as West Point, as they did not permit women to be interred.[11][16] The Grant family decided against burying him at Galena because that site was not easily accessible,[6] and other sites in Springfield, Illinois, and Troy, New York, were also rejected.[17]"
Too bad an exception wasn't made to allow for the tomb to be at West Point. It probably would drawn many more visitors and not be the subject of regular vandalism that it has suffered from.

[Frank Drackman]

Bumble, Bumble, Bumble, you made the common error I made once at the (original) Walter Reed on Georgia Avenue in Northwest DC.
Like “Bingo”, it’s just the “Soldier’s Home” not the “Old Soldier’s Home” while most of them were rather weathered, we didn’t call them “Old”
Frank

[Mr. Bumble]

Blame Wiki. Seems like the terms were used interchangeably.

[Frank Drackman]

Yes, ones the correct name, the others not, it’s like saying someone is “legally blind without glasses” when the definition of legally blind is worse than 20/400 WITH glasses, and don’t tell anyone but I’ve heard Wikipedia isn’t always right, yes I read it on Wikipedia

[Dan Schiavetta]

Estragon

This was Grant at Appomattox. A great quote, which I have cut and pasted here myself. It shows about the limits one can go as to respect for the Confederate soldier.

Oddly, what comes to mind is an episode of “The Waltons” where John Boy researches an ancestor and Grandpa reluctantly tells him that he was charged with treason, bringing shame to the family. Of course, treason against the CSA (this was Virginia). I forget how that turned out.

[Frank Drackman]

The good guys lost

[Malika the Maiz]

It tracks that a pathetic person who invents and maintains an illiterate fake persona on an anonymous legal blog is a big Confederate sympathizer.

Conservative populism, folks!

[Frank Drackman]

Before you go changin the locks on dat nappy haid of yours, I hid some Limburger Cheese in there, Hippocampus, 3rd Ventricle, dont remember, you think you can let me slide on da rent? Have it for you next week, that Cheese smells bad enough before it gets old

[Stupid Government Tricks]

I am confused by Montana v. Hall.

Montana v. Hall, 481 U.S. 400 (decided April 27, 1987): no Double Jeopardy problem with trying defendant for sexual assault after first conviction (for incest with stepchild) was reversed based on incest against stepchildren statute not yet being in effect at time of crime

I looked up several summaries. Near as I can tell, he raped his stepdaughter and was charged with sexual assault, but that got thrown out because the sexual assault law didn't cover stepchildren. So he was charged and convicted of incest, which was thrown out on appeal because the incest law didn't cover stepchildren until three months after his rape. The Montana Supreme Court said a retrial would have been double jeopardy because incest and sexual assault are the same crime, implying the state wanted to charge and try him for sexual assault. The US Supreme Court said no, that's OK, it's not double jeopardy.

OK ... except what law would have been the basis for his third charges and retrial? The sexual assault charges had already been dropped for not covering stepchildren. Did some court now decide that dropping those first charges had been in error? Did the US Supreme Court also say that incest and sexual assault were not in fact the same as the Montana Supreme Court had said? There's no mention of either in any of the summaries I looked at.

IANAL (duh!) and maybe if I spent several hours deciphering all the transcripts and verdicts, I could understand this, but I think it's more likely I'm missing some lawyerish take on this.

[Bob from Ohio]

My take is that SCOTUS just wanted to make sure this [alleged] scum did not escape justice.

[Stupid Government Tricks]

Sure, but how did the courts square that circle, where the first sexual assault charges had to be dropped for not covering stepchildren incest, but had to be prevented for being double jeopardy? What were the third charges going to be? Did they decide the first charges could be revived?

[A Japanese Student]

Opinion says that the original charge was dropped "at respondent's behest". I assume that was without prejudice.

[Stupid Government Tricks]

Why? Why would the legal system allow that kind of a change based on what the defendant wanted? I've never heard of a plea deal that ends in trial for reduced charges, but IANAL and maybe that's juts too common to ever be noticed.

[Dan Schiavetta]

I’m glad I got you thinking!

[Frank Drackman]

Did they know exactly what the facts is?

[Bored Lawyer]

Case is here: https://caselaw.findlaw.com/court/us-supreme-court/481/400.html

1. He was originally charged with sexual assault. Defendant argued that he could not be charged with sexual assault, because the victim was his daughter, and thus could only be charged with incest.
2. State then dismissed that and charged him with incest.
3. He was convicted, but then it turned out that, at the time, incest did not include step-children, and retroactive applicaiton would violate the ex post facto clause.
4. So Montana said, ok, we'll go back to sexual assault. Montana Supreme Court said, can't do that, double jeopardy.
5. SCOTUS reversed.

Here is the key legal point:

It is a "venerable principl[e] of double jeopardy jurisprudence" that "[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, Burks v. United States, [ 437 U.S. 1 (1978)], poses no bar to further prosecution on the same charge." United States v. Scott, 437 U.S. 82, 90 -91 (1978).

Defendant was convicted, but it was reversed on legal grounds, not sufficiency of evidence. That means the state had the right to retry him. On the first, sexual assault charge,

And it is clear that he was trying to game the system. When charged with sexual assault, he argued, no, she's my daughter, you can only charged me with incest. Then when charged with incest (and convicted), he argued, no, she's only a step-daughter, and incest does not apply.
Such legal games are not protected by Double Jeopardy.

[Bored Lawyer]

BTW, this often happens in cases regarding tainted evidence. Trial court lets in evidence that an appeals court says should have been excluded. That does not mean the defendant gets off, it means the state can retry him without that evidence (if it can prove a case).

[Krayt]

That's sort of a re-do on everything else, though. They can modify arguments based on results from the original trial, to say nothing of changing or buttressing them because the excluded evidence is gone, shifting the slope.

[Stupid Government Tricks]

Yes, but that's my puzzle: why drop the sexual assault charges first, switch to incest on the grounds that sexual assault didn't apply, and then switch back to sexual assault as if the earlier switch had been unnecessary or mistaken?

Why was sexual assault ruled out the first time but not the third time?

[Bored Lawyer]

Because the defendant insisted that sexual assault could not apply to him as it was his daughter, and that he had to be charged with incest. Then when he was convicted of incest, he made the opposite argument and said he could not be guilty of incest with a step-daughter. That's the game he played.

Point is, he sexually assaulted a minor girl. It's either sexual assault or incest. He tried to bounce between the two.

[Mr. Bumble]

...and no one in the prosecutors office knew the law?

[Stupid Government Tricks]

I know that!

* The state must have had some reason for switching the sexual assault first charge to the incest second charge, and not just because the defendant wanted to; the state must have had some real reason. What was that?

* The state must have had some reason for thinking their first charge switcheroo was unnecessary and they could bring that back. Why? What changed from the first time?

[Davy C]

For your first question: It wasn't the state that induced the change, it was the judge.

Four days before trial, respondent filed a motion to dismiss the information, arguing that, because the victim was his stepdaughter, he could be prosecuted only for incest, under Mont.Code Ann. § 45-5-507 (1983), not sexual assault. Respondent argued that incest was merely a specific instance of sexual assault, and that the Montana Legislature had not intended incestuous acts to be subject to prosecution under the more general sexual assault statute. On the morning of the trial, the State District Court held a hearing and then granted the motion. The State promptly filed a new information charging respondent with incest, and proceeded to trial.

For your second question: They apparently just never noticed that the crime wasn't on the books at the time of the crime, until the appeal.

Respondent appealed his conviction to the Montana Supreme Court, raising a number of claims not directly relevant to the issue before this Court. One of respondent's claims was that he could not lawfully be convicted of incest, because the victim was not his stepdaughter within the meaning of the Montana incest statute. In the course of considering this claim, the State discovered that, at the time of the assault, the incest statute had not applied to sexual assaults against stepchildren. The amended statute under which respondent was tried had not become effective until October 1, 1983, three months after the assault in question.

[Stupid Government Tricks]

That is not the question!

If sexual assault was a bad charge the first time, why was it acceptable the third time?

It doesn't matter why the incest conviction was overturned. It doesn't matter that the defendant wanted to block the first sexual assault charge. The prosecutor and judge agreed to that first change, as if the first sexual assault charge was invalid. Yet the Montana Supreme Court said a third sexual assault charge would have been double jeopardy, as if the sexual assault charge was valid. Yet the first court and the prosecutor agreed with the defendant that it was not?

Why was sexual assault an invalid charge the first time but a valid charge the third time?

And for bonus points, tell me, a non-lawyer, how I could have framed this question better to avoid all this repetition when everyone answers questions I did not ask and already knew.

[Davy C]

The short answer is: The judge made a mistake.

It was a valid charge the first time. The judge should not have dismissed it. If the judge had known how the statute had read at the time of the crime, they never would have done so.

The prosecution could have easily won their argument to keep that first charge if they had brought the change in the statute to the attention of the judge. They failed to make that argument, because they also didn't notice that the statute had changed (until the appeal of the second charge.)

So the only thing that changed was: They actually read the law. Given what the law said at the time of the crime, the defense's argument that he should have been charged under the other law was nonsense. The judge failed to see it and the prosecution failed to see it. (Given that it was the *prosecution* who found this on appeal - the defense was making some other argument - I'm guessing even the defense failed to see it.)

[not guilty]

I will take a stab at it. Jeopardy attaches in a jury trial when the jury is sworn or in a bench trial when the first witness is sworn. The initial sexual assault charge was dismissed on the accused's pretrial motion, such that jeopardy never attached to that charge.

Whether incest and sexual assault are the "same offense" for Double Jeopardy purposes is a more difficult question. SCOTUS opined at footnote 4, "We express no opinion on the correctness, as a matter of federal constitutional law, of the Montana Supreme Court's conclusion that sexual assault and incest are the "same" offenses." Montana v. Hall, 481 U.S. 400, 404 n.4 (1987).

The Montana Supreme Court opined, "if a person could not commit one offense without committing the other, then the offenses are the same. Hall's incestuous conduct constituted the same offense in law and in fact as sexual assault. Therefore, the double jeopardy clause prohibits Halls' retrial." State v. Hall, 224 Mont. 187, 192, 728 P.2d 1339, 1342 (1986).

Under Blockburger v. United States, 284 U.S. 299, 304 (1932), the applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. That would appear to be true in Mr. Hall's case regarding incest and sexual assault.

Per the Montana Supreme Court, "As applied to Hall, the statutory elements of incest are (1) sexual contact, (2) knowingly, (3) with a stepdaughter. The elements of sexual assault are (1) sexual contact, (2) knowingly, (3) with another without consent. Under the facts of this case, "without consent" requires no separate proof as an element of sexual assault because the stepdaughter was, at the time of the offense, under the age of sixteen and the offender was more than three years older than the victim." 224 Mont. at 191, 728 P.2d at 1341. This analysis overlooks what I believe to be a relevant difference in the two statutes.

The sexual offense statute stated:

A person who knowingly subjects another not his spouse to any sexual contact without consent commits the offense of sexual assault ... If the victim is less than 16 years old and the offender is 3 or more years older than the victim ... he shall be imprisoned in the state prison for any term not to exceed 20 years ...

224 Mont. at 190, 728 P.2d at 1341 (ellipses in original). Thus the incest statute requires proof of a familial relationship which the sexual assault does not, and the sexual assault statute requires proof of the ages of the victim and the perpetrator which the incest statute does not.

To illustrate by a hypothetical, suppose a stepmother, age 18 years and six months, has sexual contact with her stepdaughter, who is age 15 years and eleven months. That would constitute incest, but not sexual assault.

[Stupid Government Tricks]

And .... Why did the state think they had to charge incest instead of sexual assault the first time, but not the third time? What changed?

That's my only question. What changed?

[Mr. Bumble]

Your example sounds like something from Penthouse Letters.

[not guilty]

There is a reason they are called hypotheticals, Mr. Bumble.

[Mr. Bumble]

Just sayin', lesbian stepmother stepdaughter sex is kind of kinky, hypothetical or not.

[Frank Drackman]

And isn’t sex with a Step Daughter one of those “Malum Prohibitum”things? Like tearing the “do not remove” tag off a mattress? If she’s of legal age of course, and no, I don’t have stepchildren

[Frank Drackman]

Reading Grants memoirs big role in getting me to give up the Cancer Sticks(20+ years of Mrs Drackman, my Mom (who still smokes, she’s 82, seems to be working for her) 2 Daughters(who don’t smoke unless they’re sneaking them in the boys rooom)
OK maybe once in a while (Nov 5) when I’m a little nervous about the fate of Western Civilization, I might sneak a Camel (unfiltered of course, is there a filter for Small Cell Lung Cancer?)
Like Barry Hussein Osama(didn’t you love how “45/47” said it exactly that way?) said about his Nicotinism
“Uhhhhh it’s Uhhhhhh a work in Uhhhhhh Progress”

Frank (don’t bother me, I’m on a smoke break)

[A Japanese Student]

Horonai Shinbun Case (Grand Bench, decided April 27, 1955): Prosecution under Cabinet Order No. 235 of 1950 (prohibiting seditious speech against SCAP) must be dismissed, though justices disagree on why; five justices said the law expired on April 28, 1952 (when Allied occupation ended) and May 7 re-enactment was an ex post facto law; five said the law violated freedom of speech; three justices dissented

Liquor Tax Act Case (Grand Bench, decided April 27, 1955): Warrantless search and seizure is allowed in circumstances allowing warrantless arrests (i.e. being caught in the act), but does not require that arrests be actually made

[thesafesurfer]

Wrong article