Saturday, December 15, 2007

Nebraska Supreme Court holds double jeopardy does not require reversal and dismissal of criminal charges when the defendant's counsel provides some of the evidence offered and received at trial that provided the court with evidence to avoid a directed verdict. State v. McCulloch, S-06-275, 274 Neb. 636. In a follow up to the Nebraska Court of Appeals' Mrs. Robinson case, the Nebraska Supreme Court rules that the Court of Appeals should not have reversed the defendant's conviction for sexual assault of a child younger than 13 when the defendant was older than 19 when the defendant's counsel provided some of the evidence that helped prove. State v. McCulloch, 15 N eb. A pp. 381, 727 N .W.2d 717 (2007) (McCulloch I) rehearing granted, opinion vacated and replaced with State v. McCulloch, 15 N eb. A pp. 616, 733 N.W.2d 586 (2007) (McCulloch II). The appeals court should not have ruled on direct appeal that defense counsel was ineffective for offering the crucial evidence that defendant was older than 19 at the time of the sexual assaults. Further Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. E d. 2d 265 (1988), does not confine the reviewing court's double jeopardy analysis to whether evidence the court receives solely from the State's offer was sufficient to avoid a directed verdict. "The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict...To the extent cases such as State v. Anderson, 258 Neb. 627, 605 N .W.2d 124 (2000) may be read as limiting Double Jeopardy consideration to only evidence offered by the State, they are disapproved.

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