Murder for Hire, a Fake Lawyer, and the Double Jeopardy Question - U.S. Tenth Circuit
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Murder for Hire, a Fake Lawyer, and the Double Jeopardy Question

Getting a divorce was not enough for Gwen Bergman. She not only wanted her husband out of her life, but out of this realm. Ms. Bergman dipped into her mother's retirement account to the tune of $30,000 to hire a hit man to murder her husband. The problem? The man she hired was an undercover cop. Ooops.

But that was just the beginning of Ms. Bergman's lack of good judgment. She was duped yet again by her so-called attorney, if you could call him that. You see, he wasn't an attorney, but a con man who had been making a nice living duping many other clients (and courts).

Double oops.

The Habeas Petition

Ms. Bergman found out after her trial and conviction that her attorney was in fact not an attorney. Rather predictably, she filed a petition for writ of habeas corpus for violation of her Sixth Amendment right to effective assistance of counsel.

The court found that she had a valid claim, vacated her conviction, and since she had already completed her prison term, discharged her from supervised release. The Government asked the court to set a new trial date, but the court refused stating that its decision "implicitly" prohibited pursual of another conviction. The Government appealed, reports Courthouse News Service.

Double Jeopardy?

On appeal, Ms. Bergman argued that double jeopardy prevented any further prosecution of her, and by extension, the Government's appeal. But the Tenth Circuit didn't buy it.

The court noted that the Double Jeopardy Clause prohibits prosecution in certain circumstances, but that is not the case where the "defendant's conviction is reversed because of a trial error unrelated to the question of guilt or innocence." As a result, the court concluded that the appropriate remedy for a case where there was ineffective assistance of counsel is to have a fair trial, noting that the courts "generally seek to 'neutralize the taint' of a Sixth Amendment ineffective assistance problem by 'assur[ing] the defendant the effective assistance of counsel and a fair trial.'"

Though the circumstances of this case are pretty unique, one thing is absolutely clear: Ms. Bergman should never hire anyone to perform services without a little advice from a third party.

Related Resources: