Seeing double (jeopardy) & apportioning water


I have just returned from the latest conference of the American Academy of Appellate Lawyers, and will provide a full report anon.  Info includes technology use, ethical issues for appellate practitioners, and lots of other tips.

But first, ex-PA member, now First Circuit Judge Kayatta has struck again with another dissent, this time involving a double jeopardy issue.  U.S. v. Szpyt, Docket No. 13-1543 (say that 5 times fast)

This decision relates to indicting a conspiracy, and when that case is over, indicting on another, and deciding when the latter is distinct enough so that the defendant can get tried again.  The majority (Judges Torruella and Howard, with Judge Howard concurring) thought yes; Judge Kayatta, no. Judge Howard said he disagreed with an earlier decision relating to the first trial but felt bound by it, noting that Judge Kayatta “nicely capture[d] the reasons why” that the earlier decision was wrong.  Judge Howard also said, however, that Judge Kayatta misapprehended an aspect of that previous decision that led him astray, resulting in a dissent with a “rhetorically powerful though ultimately fictive parade of horribles.”   

As Judge Howard’s concurrence indicates, per usual, Judge Kayatta’s dissent has some nifty phrasing.  The question ultimately resulting from the decision is whether it be viewed narrowly a one-off “mulligan” in Judge Kayatta’s words, read only within the unique confines surrounding the first trial, or whether courts will give it a broader precedential import.  

Also on the Judge Kayatta front, last month the Supreme Court, in a split decision, accepted his special master report in Kansas v. Nebraska.  The Scotus blog has a link and a nice summary. 

This was a water fight, and basically, the majority (Justice Kagan) accepts an equitable approach that gives the Court (and special master) flexibility in determining remedies to water compact breaches.  Read her decision for some water puns.