What Is Double Jeopardy (Not the Game Show)?

by | August 22, 2023

Soto v. Siefker, 2023 WL 5346470 (6th Cir. 2023)

In January 2006, Travis Soto’s two-year-old son, Julio, was killed. Soto initially told investigators he had accidentally run over Julio with an ATV after driving around the corner of a building on his property. Soto later explained Julio fell off the back of the ATV while Soto was driving. A coroner conducted an autopsy and concluded Julio’s injuries were consistent with falling from an ATV. Soto was charged with child endangerment and involuntary manslaughter. Soto pled guilty to child endangerment in exchange for dismissal of the involuntary manslaughter charge. He was sentenced to and served five years in prison.

In July 2016, Soto went to the Putnam County Sheriff’s Office and confessed to a detective he had beaten Julio to death and made up a story about the ATV accident. A doctor specializing in pediatric abuse reviewed the 2006 autopsy report and photographs taken at the time and opined that Julio’s injuries were consistent with being beaten to death. Soto was charged with aggravated murder, murder, felonious assault, kidnapping and tampering with evidence.

Soto asserted he could not be charged because he had been convicted in 2006, relying on the Fifth Amendment’s Double Jeopardy Clause. The Double Jeopardy Clause states no “person shall be subject for the same offence to be twice put in jeopardy of life or limb.” The prohibition on double jeopardy bars a second prosecution for an offense after an initial acquittal or conviction on that offense, and it prohibits multiple punishments for the same offense. The Supreme Court has held that a lesser-included offense counts as the “same offense” as any “greater” offenses—meaning offenses that include all the elements of the lesser one (Brown v. Ohio, 432 U.S. 161 (1977)).

Because the charge itself was never before the judge to rule on guilt or innocence, there was no jeopardy.

Soto raised a novel issue of law. For purposes of the Double Jeopardy Clause, jeopardy “attaches” to a particular charge only when a judge or jury has the power to determine guilt or innocence for the particular “offense.” The United States Supreme Court has never decided whether jeopardy attaches to a charge dismissed as part of a plea agreement prior to trial.

The trial court ruled Soto was not protected by the Double Jeopardy Clause for a charge dismissed pursuant to a negotiated plea. In its ruling, the court relied on a case where a defendant claimed double jeopardy when the court dismissed a charge on procedural grounds and in which the Supreme Court determined jeopardy did not attach (Serfass v. United States, 420 U.S. 377 (1975)). Because the charge itself was never before the judge to rule on guilt or innocence, there was no jeopardy.

After the case wound through the courts, including the Ohio Supreme Court and a rejected appeal to the United States Supreme Court, the Court of Appeals affirmed the denial of double jeopardy protection. The court held that, once the court accepted Soto’s guilty plea for the child endangerment charge, the manslaughter charge was dismissed and the court never had the ability to determine Soto’s guilt or innocence on the manslaughter charge.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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