Schiro v. Farley: If at First You Don't Succeed, Trial and Trial Again; The Demise of the Double Jeopardy Clause Within the Context of Capital Punishment
Edgerton, Patrick L.
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This note examines the United States Supreme Court decision allowing a trial judge in the sentencing phase to use as an aggravating circumstance to impose the death penalty, an element of which the jury was silent in the guilt or innocence phase. The author contends that the majority's application of the Double Jeopardy Clause, including the doctrines of collateral estoppel amid implied acquittal, was not only erroneous but also inconsistent in light of the Court's prior holdings treating capital cases as two trials: (1) guilt or innocence phase; and (2) sentencing phase. Focusing on the "trial-like" nature of the sentencing phase in a capital trial, the author suggests that the guilt or innocence phase and the sentencing phase should be treated as two separate trials even absent a remand after appeal.