738
Opinion of White, J.
(1973), the jury in the second prosecution would in all likelihood receive instructions on the lesser offense and could find Foster guilty of simple assault. In short, while the Government cannot, under the Constitution, bring charges of simple assault, it apparently can, under the majority's interpretation, secure a conviction for simple assault, so long as it prosecutes Foster for assault with intent to kill. As I see it, Foster will have been put in jeopardy twice for simple assault.10 The result is as unjustifiable as it is pernicious. It
10 Justice Scalia's dismissal of this concern is difficult to follow. As I understand it, he maintains that no double jeopardy problem exists because under Blockburger a conviction for assault would not be upheld. See ante, at 702, n. 7. I suppose that the judge could upon request instruct the jury on the lesser included offense and await its verdict; if it were to find Foster guilty of simple assault, the court could then vacate the conviction as violative of the Double Jeopardy Clause—or, barring that, Foster could appeal his conviction on that basis. The sheer oddity of this scenario aside, it falls short of providing Foster with the full constitutional protection to which he is entitled. A double jeopardy violation occurs at the inception of trial, which is why an order denying a motion to dismiss on double jeopardy grounds is immediately appealable. See Abney v. United States, 431 U. S. 651 (1977). As we explained in that case: "[T]he Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense." Id., at 660-661. In light of the lesser included offense instructions, and the associated risk of conviction for that offense, Foster would have to defend himself in his second trial once more against the charge of simple assault, thereby undergoing the "personal strain, public embarrassment, and expense of a criminal trial." Id., at 661. Even if the conviction were set aside, he still would have "been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit." Id., at 662. Indeed, I would have imagined that Justice Scalia would agree. As he recently wrote: "Since the Double Jeopardy Clause protects the defendant from being 'twice put in jeopardy,' i. e., made to stand trial . . . for the 'same offence,' it presupposes that sameness can be determined before the second trial. Otherwise, the Clause would have prohibited a second 'conviction' or 'sentence' for the same offense." Grady, 495 U. S., at 529 (dissenting opinion) (emphasis added). This double jeopardy predicament, of course, could be avoided by Foster's attorney not requesting the lesser included offense instructions to
Page: Index Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 NextLast modified: October 4, 2007