Supreme Court Rules in Double Jeopardy Case

David and Sarah give a rundown of two Supreme Court opinions this week: Shinn v. ...

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David and Sarah give a rundown of two Supreme Court opinions this week: Shinn v. Ramirez and Denezpi v. United States. They discuss an interesting phenomenon called stochastic terrorism as they cover the attempted murder of Supreme Court Justice Brett Kavanaugh. The gun safety legislative package reached bipartisan compromises in the Senate, but will the House be a bigger hurdle? Our hosts think so.

Show Notes:

–Shinn v. Ramirez

–Denezpi v. United States

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  1. Avatar photo
    KP

    One question David still hasn’t answered in his love affair with red-flag laws: Who’s going to take the guns away from someone adjudicated not fit to possess them: the Coward of Broward? Arredondo? Another shrinking violet?

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    Charles

    I’m curious. If the would-be assassin’s case gets appealed all the way to SCOTUS on that question of abandoning the plan or not, would Kavanaugh be required to recuse himself?

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    Young Riprock

    Sarah and David,
    I think your discussion of abandonment in the context of inchoate crimes was incorrect. The Fourth Circuit case cited by Professor Kerr does not hold that an abandonment affirmative defense is available in an attempt crime and has never done so. It says that it would not have been appropriate in this case.

    Every federal circuit which has looked at this has rejected the model penal code's provision allowing for abandonment.

    We emphasize that all of our sister circuits that have faced this issue have either held that a defendant cannot abandon a completed attempt or have alluded to such a determination. See United States v. Crowley, 318 F.3d 401, 410–11 (2d Cir.2003) (not formally addressing the issue but noting, “[t]he only other circuits that have formally addressed the question have rejected the defense as a matter of federal law”); United States v. Shelton, 30 F.3d 702, 706 (6th Cir.1994) (“[W]ithdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime.”); United States v. Bussey, 507 F.2d 1096, 1098 (9th Cir.1974) (“A voluntary abandonment of an attempt which has proceeded well beyond preparation as here, will not bar a conviction for the attempt.”); United States v. Wales, 127 Fed.Appx. 424, 432 (10th Cir.2005) (unpublished) (“[N]either this circuit nor any other circuit to have addressed the issue has held that abandonment or renunciation may constitute a defense to the completed crime of attempt.”).

    Specifically, in Shelton, the Sixth Circuit rejected the Model Penal Code's approach and held that “withdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime.” 30 F.3d at 706.

    While the 4th Circuit has not directly decided the issue, I would bet money that the district court will not allow him to present an abandonment defense if he gets to trial.

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    Leo

    Do you know what sort of podcasts we might be able to listen too if we want to get good layman's level explanations of the SCOTUS opinions you two find too boring to go through?

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      Sarah Isgur vertical-nib Author

      Scotusblog will have a write up of every case and they’re pretty easy to understand

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      Leo

      I'm interested in the VA case that came out today but it sounds like the sort of thing you won't do

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    Ben Connelly

    Boy the Supreme Court is just stacking up all the really big decisions to be released in one giant drop all at once.

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    Dina

    Problems with AO analysis of Shinn v Ramirez: The SCOTUS ruling was justified because of contradictions between statutes, but the ruling contradicts the higher statute that the state may not deprive an innocent citizen of life or liberty. Taking away the death penalty wouldn't make this ruling just, only less awful. Also, Thomas wrote in his opinion according to NPR, that "To allow such evidence to be presented in federal court...'encourages prisoners to sandbag state courts,' depriving the states of 'the finality that is essential to both the retributive and deterrent function of criminal law.'" Is that a concern for a technicality or a perversion of justice, placing the convenience of the state over the lives and liberty of its citizens?

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  7. Christopher

    My only question regarding Shinn v. Ramirez is how many branches of government run separate legal systems?

    DoJ has the federal court.
    DoI has the CFR Indian country courts.
    DoD can prosecute your under the UCMJ.
    How many else are there?

    Can we imagine a member of the military assaulting a postman and the government trying 3 different times to get them under state, federal, and military justice.

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    1. Mathew A

      Yep, it's all a bunch of BS. No double jeopardy should mean no double jeopardy, and that should include state courts too

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    Jacob

    David and Sarah, Barrett put tremendous emphasis on how Gorsuch's arguments weren't made by Denzepi, and how the Court was only responding to the arguments Denzepi made. It characterizes Gorsuch's arguments as sue sponte.

    Also, this case feels like a repeat of Garland v. Patel. Barrett and co for a majority and Gorsuch for the dissent - the two sides doing dueling textualism/originalism.

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  9. Deanjens

    How did the attempted assassin come to have his firearms in Maryland? Did he buy them in California and put them in checked luggage? Did he buy ammunition in Maryland?

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  10. John Cuyle

    If we're increasing the age at which someone can buy a long gun from 18 to 21, can we at minimum, BEFORE we do that, increase the voting age from 18 to 21? It is extremely dangerous to create a class of voter who can vote vote for a candidate that support legislation that limits rights for others which the voter DOES NOT ENJOY themselves. If you can't exercise a right, you can't really appreciate the importance of a right, and if you cannot appreciate the importance of a right you cannot make an informed choice which has implications for that right at the ballot box. I don't particularly care what age people are allowed to vote or own a rifle, provided that whatever that age is, it is the same for both.

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    1. Mathew A

      The problem with both of these is that at 18 you can be DRAFTED to fight and die for your country.

      So if 18 is old enough to die for your country, it should be old enough to vote, old enough to buy a gun, and for that matter old enough to drink a beer.

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      1. John Cuyle

        Alternately, increase the draft age to 21.

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        1. Sean

          This is bad idea. This would restrict the number physically abled men available to fight in the next (very unfortunate) large war. We are already at a major population disadvantage to China, so why make it worse.

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        2. Mathew A

          I very much doubt they will do that.

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