Commentary: Is Retrying the Pie Case Double Jeopardy?

Sean Thompson with his defense team

Under the “Double Jeopardy” clause of the U.S. Constitution, contained in the Fifth Amendment, a person cannot be tried for the same crime twice.  In 1824 a U.S. Supreme Court case held that retrial in the event of a hung jury is permissible, where the court utilized the English common law view, rather than a constitutional one, that jeopardy does not attach until and unless a verdict is rendered.

On Thursday, the Sacramento DA’s office announced that it would re-file felony assault charges against Sean Thompson for his actions when he pied former Mayor Kevin Johnson as a political prank.

A jury did not find him guilty in a nearly two-week trial that ended with a hung jury on May 15.

Much has been made about the waste of court resources, retrying a felony charge here, but not enough has been made about the defense claim that the jury actually acquitted Mr. Thompson of the felony and hung on a lesser included charge.

When the Vanguard interviewed Mr. Thompson’s attorney, Claire White, three weeks ago, she told the Vanguard that the jury told the court that they had reached an agreement – all 12 jurors – on the felony Penal Code section 217.1(a), assault on an official, but hung on the lesser included misdemeanor assault charge.

“What that means is that they reached a verdict on Count 1 which is not guilty, but they were unable to communicate that to the judge,” Claire White told the Vanguard.  They kept saying they had a partial verdict.  But the judge never required them to go in and fill out the verdict form.  Instead, “He just declared a mistrial on all counts.”

Because of that, the DA still has the opportunity to retry the felony should they choose.

“We can appeal the decision,” Ms. White explained.  That option was being discussed at the time.  “There were a number of decisions that were in error, that being one of them.”

They were waiting to see if the DA would decide to retry or would dismiss in the interest of justice.

Yesterday, when the DA decided to re-file, Ms. White announced that her Vallejo law firm of Morton & Russo would be filing a motion claiming that Thompson cannot be retried in the case on the same charge of “assault on a public official” because the jury voted 12-0 not guilty on that charge.

“It would be double jeopardy. We have laws in the country against that. We will be getting affidavits from the jurors in the past case to prove the vote was 12-0,” said Ms. White.

She also said that Mr. Thompson would accept a no contest plea to “disturbing the peace,” a simple misdemeanor, to “save county taxpayers the cost of litigating this again.” The DA reportedly had no comment about the offer.

The new trial date is scheduled for August 24 with a readiness hearing on August 17.

On May 15, Superior Court Judge Robert Twiss declared a mistrial when 12 jurors – deliberating on parts of five days – reported they were hopelessly deadlocked and could not find Sean Thompson guilty of any of the charged offenses. The trial began May 1, and was sent to the jury late on May 9.

Mr. Thompson, a military veteran, was charged with felony assault on a public official, and faced numerous other misdemeanor charges. Jurors who spoke publicly after the trial said it was unanimous, 12-0, that he was not guilty of the most serious of the charges, the felony. They could not get a unanimous verdict either way for the lesser assault and battery charges.

Pro bono defense counsel Jeffrey Mendelman and White called the mistrial a “victory for justice” and common sense, and praised the jurors for doing their job in the face of sometimes confusing instructions, with very little evidence presented by the DA. The victim, former Mayor Johnson, was not called to testify and dodged defense subpoenas for months to avoid testifying.

Jurors, however, agreed pieing someone is not felony assault and battery. And Ms. White told the jury that “the wrong man is on trial for the one crime,” suggesting it was Johnson who should be on trial for sending Thompson to the hospital. Even prosecution witnesses said Thompson was beaten bloody by Johnson who didn’t stop punching even though Thompson didn’t fight back. Johnson only stopped punching Thompson, who was hospitalized, when his own security pulled him off, witnesses said.

Now the question will be left to the appellate courts as to whether the judge erred by not requiring the jury to fill out the verdict forms and acquit the defendant on the main felony charge.  It is hard to see how the court could rule otherwise, but that remains to be seen.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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8 thoughts on “Commentary: Is Retrying the Pie Case Double Jeopardy?”

  1. John Hobbs

    Is Retrying the Pie Case Double Jeopardy?
    No. Is the Davis Vanguard (i.e. David Greenwald) in favor of rule by vigilantes? If not, why do you keep championing this thug? Of course the real reason has more to do with your feelings toward Mayor Johnson and contempt for Sacramento. Thompson is a derelict who is getting more attention than the crime he committed. As Marcos Breton pointed out in The Bee,” Thompson used physical violence to humiliate another human being. When is that ever OK?”

    Now I await your predictably sappy “But Johnson hit him back.” nonsense

      1. Jim Hoch

        When conjoined charges are presented to a jury it would not be unusual for the jurors to agree to vote against one charge in order to encourage other jurors to vote for a related charge. If the charges were unrelated you would have a better point.

        1. Jim Hoch

          That is exactly how it works. A jury may be charged with both first and second degree murder with manslaughter offered as an option. Hanging on second would not necessarily preclude retrying on first to my knowledge, but I am not a lawyer.

        2. David Greenwald

          Usually they are not charged with both, but rather in jury instructions they are allowed to consider a lesser included charge.  They are only allowed to even consider a lesser included after they acquit on the greater charge.  If this is accurate than the judge completely screwed this up, he should have made them fill out the verdict form for the felony and called a mistrial on the misdemeanor.  I think the defense is going to easily prevail here.

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