There is a practice among prosecutors whereby they pursue incompatible theories
of a case against two or more defendants for criminal behavior for which, factually,
only one defendant can be culpable. While it’s difficult to determine just how fre-
quently these arguments are made, at least twenty-nine people have been con-
demned to death in cases where the defense has alleged inconsistencies, and seven
of those twenty-nine people have been executed. Situations like these cut against our
moral and ethical understanding of fairness and of justice; these arguments operate
in a world detached from reality, where factually singular acts can have multiple
agents, prosecutors are not accountable to a consistent narrative, and factfinders are
asked to make ultimate determinations of death based on factual impossibilities.
But finding ways to challenge the practice has, frustratingly, fallen short in pro-
viding legal relief to the condemned.
This Note looks beyond the due process and Eighth Amendment arguments against
this practice that have not provided fertile ground for protecting criminal defen-
dants from this type of vindictive approach to sentencing. Instead, this Note makes
a normative argument that the history of the Fifth Amendment’s Double Jeopardy
Clause, along with civil law principles of collateral estoppel that have been incorpo-
rated into the criminal law through the Clause, and protections against vindictive
sentencing practices that undergird the Clause bars this practice. In other words,
this Note argues that double jeopardy preclusion principles bar prosecutors from
relitigating issues of ultimate culpability in successive cases. This solution draws on
the Supreme Court’s only consideration of this issue—Bradshaw v. Stumpf—which
makes an analytical distinction between the consequences of this practice on convic-
tion and consequences on sentencing.