Redoubled Jeopardy

The zeal with which Tracy L. Batts and Terrance McCrea sought to prevent Benczeon Jones from testifying against them for the murder of his brother, Brian, was matched by the State of California, which tried numerous times to ensure that the two Atlantic Drive Crips paid for their crimes.
Batts was tried three times for Brian’s murder, and McCrea twice, with the state finally succeeding in 2000, after which an appeals court overturned the convictions on Double Jeopardy grounds. The California Supreme Court, however, reinstated their convictions, finding that the last trial did not violate their Constitutional rights. The state high court’s decision is complex and far outside the scope of this article. To see what I mean, chew on this nugget from the majority’s opinion:

(We) agree with the basic conclusion of these courts that instances in which a prosecutor commits misconduct with the intent to provoke a mistrial do not exhaust the circumstances in which a prosecutor’s intentional misconduct improperly may defeat the interest that the double jeopardy clause is intended to safeguard.

Double jeopardy, of course, is the clause in the Fifth Amendment to the federal Bill of Rights that prevents a defendant from being tried over and over again for the same crime until the government is satisfied with the result. The prohibition on retrial is not absolute, as demonstrated in the case of Batts and McCrea. Nor does it prevent a person from facing civil and criminal trial based on a single incident, or a defendant from being charged with unrelated state and federal charges (e.g., state murder charges and federal civil rights violations).
This case began its convoluted trip through the criminal justice system on September 12, 1997 when Benczeon, a younger memberof the Atlantic Drive Crips, was washing his car. Batts and McCrea, a couple of OGs, and a third man approached him and ordered him to leave the area and threatened him over a dispute over drug turf. Benczeon was joined by Brian who began arguing with the three OGs.
Batts and his friends left but returned shortly after, heavily armed. Batts had a gun in each hand and McCrea had a single automatic.
Gunshots followed. Brian was killed and Benczeon was hit in the leg.
Brian’s girlfriend saw Batts and his crew return the second time, but did not see the shooting. However, she ran outside after hearing the shots and was told by Benczeon that Batts shot them. As she called police, two other friends arrived to drag Benczeon off the street. He told them Batts and McCrea did the shooting.
Apparently, although Benczeon denied it at the time, he or his brother returned fire, because shortly after Batts showed up in an emergency room with a bullet wound to the shoulder. He was evasive about where his injury had occurred, finally telling authorities he had been shot in Long Beach.
Although Benczeon was initially cooperative with police by identifying Batts in a photo lineup, he ultimately expressed concern for his life and the safety of his family.
He had good reason to be afraid. While he was recovering in the hospital, Batts’s brother showed up to “pay his respects” and left Benczeon crying after his visit. The upset victim told authorities he had been warned through implied threats against his life to cease cooperating.
While he was recuperating in the hospital, Benczeon was approaced by a detective who discussed the possibility of his entering the Los Angeles County witness relocation program. Benczeon was non-committal to the offer at that time.
Two weeks later, a 10-year-old brother of Brian and Benczeon received a phone call threatening his older brother. However, Benczeon later viewed another photo lineup and this time identified Batts and McCrea as his brother’s killers.
In January 1998 Benczeon was shot and wounded, and told authorities that he thought the shooting was related to his cooperation.
Thanks in part to his testimony, and that of Batts’s girlfriend, who claimed Batts told her he killed “a cousin in Compton,” Batts was convicted of Brian’s murder. McCrea was a fugitive at the time and was not tried.
In October 1998, Benczeon received $1,500 from the LA County Witness Relocation Program to be used for moving and rent. Shortly afterward, Batts won a retrial after another Atlantic Avenue OG who was housed with Batts in LA’s central jail and was awaiting sentencing for another gang murder confessed to the killings.
However, in March 1999, while Batts was awaiting retrial, Benczeon was gunned down after being chased and shot in a drive-by. In typical drive-by shooting fashion, it wasn’t the bullets that killed him, but instead he died after being wounded and fleeing into traffic to escape the gunmen.
Police were unable to establish a link between Benczeon’s testimony and his assassination.
Meanwhile, McCrea was arrested and the State went ahead with the retrial of Batts and the first trial of McCrea for Brian’s murder. During that trial, Benczeon’s first trial testimony was read into the record, because it was not considered hearsay as the witness was obviously not available to retestify.
His testimony was not admissable against McCrea, who was not a defendant in the first trial and thus, was not able to cross-examine Benczeon.
During Batts’s second trial, the detective who paid Benczeon the money was subjected to withering cross-examination by Batts’s attorney. The defense alleged that there was no evidence the money was ever used for relocation expenses and that it was simply a “payoff” for Benczeon’s testimony.
The defense attorney also questioned why Benczeon “never showed up” at preliminary hearings in the case. In fact, Benczeon had no reason to “show up” at any of those hearings, which the defense attorney knew.
“Benczeon’s hearsay statements made to Detective Branscomb were admissible through the detective, and hence he was not required to testify at those preliminary hearings,” the California Supreme Court ruled “And in any event, as to one of those hearings, it was impossible for Benczeon to attend, because he had been murdered–a fact that, pursuant to the trial court’s earlier ruling, was to be kept from the jury.”
This tactic placed the prosecution in an extremely precarious position. They feared that the jury was left with the impression that the absent witness had been paid off and made to be unavailable to the defense. However, they were specifically ordered by the court not to reveal why Benczeon was not available to testify.
Faced with this conundrum, the prosecutors gambled that bringing up Benczeon’s situation would prompt a defense objection, which would allow them to argue that the defense had opened the door by implying the payoff.
During a recess, prosecutors told the detective that on redirect examination, he would be asked why Benczeon failed to participate in one of the preliminary exams and advised the cop to answer truthfully. They advised him to answer slowly to give the defense time to object.
“Did Benczeon testify at the May 10, 1999 preliminary hearing?” the prosecutor asked.
“No,” came the response.
“Why not?”
“He was murdered,” the detective answered.
After a juror burst into tears, the court ordered a recess. The defense did not object to the questions and during a hearing on the defendants’ motion for mistrial, the prosecution argued that the defense specifically provoked the issue by misleading the jury about the reason for Benczeon’s absence.
“How do we respond to that?” the lead prosecutor argued before the judge. “Do we sit there and allow our credibility, our reputation to be attacked, the witness’ credibility to be destroyed when it is a lie? I can ‘t imagine what else we’re supposed to do and what else any lawyer would expect us to do after that kind of attack.”
The defense, however, argued there was no reason to object because the trial court had already ruled the question was inadmissible and that the proper step was a motion for mistrial.
The judge ruled that he was “shocked” and “stunned” by both the prosecutor’s question and the answer. He further ruled that under the circumstances there was no reasonable opportunity for defense counsel to object, and that the prosecutors had acted in “reckless disregard of the rights of the defendants in posing this question under the circumstances without it being screened.” The court concluded that the prosecution “committed misconduct in presenting the question at issue. And knowing what its response would be, the error caused by such conduct is too serious to be corrected.”
He granted a mistrial and dismissed the jury.
The case was slated for yet another trial, but before it could begin, the defense for Batts and McCrea argued their Double Jeopardy claims, which the trial court rejected.
The trial went forward and both men were convicted. On appeal, the California Court of Appeals overturned the convictions, accepting the Double Jeopardy arguments that the prosecutors could not deliberately cause a mistrial and then seek to retry the defendants.
The California Supreme Court overruled that decision and reinstated the two convictions, finding that the prosecutors did not deliberately set out to cause a mistrial and thus Double Jeopardy did not apply.