710
Opinion of the Court
Grady rule gave cause for concern that the rule was not an accurate expression of the law. This "past practice" excuse is not available to support the ignoring of Grady in the present case, since there is no Supreme Court precedent even discussing this fairly new breed of successive prosecution (criminal contempt for violation of a court order prohibiting a crime, followed by prosecution for the crime itself).
A hypothetical based on the facts in Harris reinforces the conclusion that Grady is a continuing source of confusion and must be overruled. Suppose the State first tries the defendant for felony murder, based on robbery, and then indicts the defendant for robbery with a firearm in the same incident. Absent Grady, our cases provide a clear answer to the double jeopardy claim in this situation. Under Blockburger, the second prosecution is not barred—as it clearly was not barred at common law, as a famous case establishes. In King v. Vandercomb, 2 Leach. 708, 717, 168 Eng. Rep. 455, 460 (K. B. 1796), the government abandoned, midtrial, prosecution of defendant for burglary by breaking and entering and stealing goods, because it turned out that no property had been removed on the date of the alleged burglary. The defendant was then prosecuted for burglary by breaking and entering with intent to steal. That second prosecution was allowed, because "these two offences are so distinct in their nature, that evidence of one of them will not support an indictment for the other." Ibid. Accord, English and American cases cited in Grady, 495 U. S., at 532-535 (Scalia, J., dissenting).15
15 Justice Souter dislikes this result because it violates "the principles behind the protection from successive prosecutions included in the Fifth Amendment." Post, at 761. The "principles behind" the Fifth Amendment are more likely to be honored by following longstanding practice than by following intuition. But in any case, Justice Souter's concern that prosecutors will bring separate prosecutions in order to perfect their case seems unjustified. They have little to gain and much to lose from such a strategy. Under Ashe v. Swenson, 397 U. S. 436 (1970), an acquittal
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007