A jury found Davidson, 31, guilty of negligent homicide, driving while under the influence and leaving the scene after a collision but could not reach a unanimous verdict on the most serious charge: voluntary manslaughter. Prosecutors hope that D.C. Superior Court Judge Lynn Leibovitz will say on Friday that they can try her again.
Prosecutors want to retry Davidson on charges of voluntary and involuntary manslaughter, which could mean up to 30 years in prison on top of the three to five she already faces. Davidson is being held at the D.C. jail.
J. Michael Hannon, Davidson’s attorney, argues that a retrial would violate her constitutional right against double jeopardy, which bars a person from being tried again on the same, or similar, charges after an acquittal or conviction. He called the government’s attempt unprecedented.
“There is no case anywhere that allows the government to accept a jury’s conclusion that they couldn’t reach a decision and then, later on, try to retry the same count,” Hannon said in an interview.
Prosecutors failed to charge Davidson with involuntary manslaughter the first time around, Hannon said, and are now trying to correct their error after failing to secure a verdict that carried more prison time.
“Ms. Davidson would be unfairly punished if the court were to enter a mistrial, stripping her of her double jeopardy rights and permitting retrial of voluntary manslaughter,” Hannon wrote this week in a court filing asking Leibovitz to reject another trial.
Because Leibovitz did not declare a mistrial after the jury failed to reach a verdict on manslaughter and then dismissed the jury, only sentencing should remain, Hannon wrote.
But Assistant U.S. Attorney Michael C. Leibman said that Hannon should have known the prosecution might seek a retrial on the charges for which there was no verdict. Instead, Leibman suggested, Hannon gambled that the government would not charge Davidson again and consented to a “de facto mistrial” when he did not object when the jury was discharged.
“It was a calculated risk, to be sure,” Leibman wrote in a court filing.
Leibman and Bill Miller, a spokesman for the U.S. attorney’s office, declined to comment.
Filing new charges after a verdict is an unusual move, according to people familiar with the case. “I’ve never heard of it happening before,” said a homicide expert in the U.S. attorney’s office who spoke on the condition of anonymity because the case was pending.
Some legal experts not affiliated with the case disagree with Hannon’s reasoning and say that prosecutors can file new charges because the jury did not reach a verdict.
“Because a verdict was not rendered, double jeopardy does not come into play,” said Louis Michael Seidman, a constitutional law professor at Georgetown University.
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