News broke a few days ago that a federal jury in Tacoma had found state Auditor Troy Kelley not guilty of lying to IRS, and had deadlocked on the other fourteen remaining charges. The question now becomes will the prosecutor (the US Attorney’s Office) decide to make Kelley go through another trial on the fourteen charges that the jurors could not agree on.
You may be wondering why a prosecutor has this option. Kelley was found not guilty on one count, and double jeopardy prevents retrial on this count. But since the jury could not decide on the other fourteen counts, double jeopardy does not prevent the prosecutor from retrying Kelley on these counts.
The legal basis for all of this stems from the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” It protects against being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense. Article 1, § 9 of the Washington State Constitution has a similar Double Jeopardy Clause, which provides that no person shall “be twice put in jeopardy for the same offense.”
So while it appears the prosecutor may have the option of retrying Kelley, that does not necessarily mean they will exercise this power. Typically, the prosecutor will re-analyze their case to determine if they believe they can still get a conviction on any of the remaining fourteen counts. Occasionally, at the conclusion of the trial, the judge will poll the jurors, which means find out how many were in favor of guilty versus how many were in favor of not guilty (the jury must be unanimous to return a verdict of guilty or not guilty). This could play a factor in the prosecutor’s decision to retry, but ultimately, the prosecutor can retry the charges even if eleven jurors voted not guilty and there was only one hold-out juror who was adamant Kelley was guilty.