Just How Many Bites at the Apple?

Posted by Scott Heiser, Director of ALDF's Criminal Justice Program on July 11, 2011

We are all familiar with the concept of “double jeopardy.” It is in the Fifth Amendment, which states, in relevant part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]” As we all remember from our sixth grade civics class, this means that the State gets only one shot at convicting an animal abuser. What we typically never learn about (unless we attend law school) is how many shots an animal abuser gets at avoiding accountability. Ignoring all of the pre-trial gamesmanship (e.g., attempts to exclude relevant evidence of guilt or ignoring discovery deadlines) that is part of the “truth seeking process” for the time being, the goal here is to give our faithful readers an appreciation for just how many options an animal abuser has to beat the rap, even after a jury has found the animal abuser guilty.

Using Oregon as the example, prior to the direct appeal from the trial court after the jury’s “guilty” verdict, an animal abuser has two options: file a motion in arrest of judgment (ORS 136.500) or a motion for a new trial (ORS 136.535). The grounds for each motion vary, but include claims as basic as the assertion that it’s “just not fair” to convict me under the animal cruelty code (a/k/a an “unconstitutional ‘as applied’ claim”), or that the animal abuser’s rights were compromised by “accident or surprise which ordinary prudence could not have guarded against.” And those are just the post-verdict, pre-appeal options.

Next comes the direct appeal, where the animal abuser attempts to persuade a higher court that the trial court committed errors of law. Under this scenario, the case moves from a trial court to the appellate court where the appellate court examines the trial record for errors of law. However, here’s an interesting fact: if the original trial was held in an “inferior trial court” (e.g., a municipal or justice of the peace court), then the first appeal is to yet another trial court, or a trial court of record… And get this–appeals of this type are de novo, meaning that the animal abuser gets a complete new trial as a matter of right. The appeal is not limited by the record established in the first trial (often there is no record at all in these lesser courts where many misdemeanor animal cruelty cases are prosecuted) — the state has to re-subpoena all of the witnesses and put the case on again, in its entirety.

The next step is to appeal to the Court of Appeals (an intermediate appellate court). Once the direct appeal is completed in the Court of Appeals, the animal abuser can petition the State Supreme Court for review. If unsuccessful there, the animal abuser has the option of petitioning for cert in the U.S. Supreme Court (a long shot to be sure, but still an option).

Even after losing in the trial court(s) and at every phase of the direct appeals process, the animal abuser can still file an entirely new civil case collaterally attacking the animal abuse conviction. This is called a “post-conviction relief” (PCR) case (ORS 138.510, et seq.) and the grounds for filing such an action include claims that the animal abuser’s attorney was “ineffective,” or that the underlying statute upon which the conviction was based is unconstitutional. Of course, once the animal abuser loses in the trial court on the PRC case, the abuser can appeal that claim as well (appellate court, state supreme court and even the United States Supreme Court). In addition to, or in some states, in lieu of, some jurisdictions still entertain the host of common law post-conviction remedies, including the motion to correct the record, the motion for relief in the nature of coram nobis, and the motion to vacate the judgment.

If the animal abuser remains in custody, the abuser can also file a petition for a writ of habeas corpus challenging the reason for the abuser’s confinement on constitutional grounds (e.g., ineffective assistance of counsel to the extent that the constitutional right to counsel was compromised, or the improper admission of evidence on Fourth Amendment grounds).

Contrast these procedural realities with the fact that double jeopardy applies to the State (e.g., one shot and you’re done), and one can reasonably conclude that an animal abuser has more than a fair share of opportunities to beat the rap. In fact, one might even conclude that our justice system is so badly skewed in favor of protecting offenders that the basic integrity of the entire system is now open to debate, as more and more guilty people avoid accountability by exploiting any one of the many loopholes that offer them a path to reoffend.