WASHINGTON - An appeals court Wednesday rejected an Arizona prisoner's claim that he could not be tried for murder during the commission of a robbery after jurors "impliedly" acquitted him of the robbery and deadlocked on the murder.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said the state's attempt to retry Robert Lemke for murder did not amount to double jeopardy.
In a partial dissent, Judge Larry Burns said Lemke should not even have been allowed to make the appeal. Lemke, who pleaded guilty to murder before the second trial could begin in exchange for a life sentence, waived his rights to appeal as part of that plea agreement.
"A deal's a deal, and we should enforce this one," Burns wrote.
Attorneys for Lemke said they would review the ruling before deciding what steps to take next.
"The Supreme Court has established that a person cannot be tried for a second time for an offense they were acquitted of, and that is exactly what happened in this case," said Golnoosh Farzaneh, the assistant federal public defender who represented Lemke on appeal.
Lemke was charged with the August 2002 robbery and shooting death of Charles "Rick" Chance. Published reports at the time said Lemke shot Chance in the chest during a botched robbery at a Tempe hotel room.
Lemke was charged with armed robbery, conspiracy to commit armed robbery and felony murder - a murder that takes place during the commission of a robbery.
The case went to trial in 2005 and a Maricopa County jury deliberated for seven days before convicting Lemke on the lesser charges of theft and conspiracy to commit theft. It left the robbery counts blank on the verdict form and said it could not reach a verdict on the murder charge.
When prosecutors sought a new trial on the felony murder charge, Lemke tried to block it as double jeopardy. But state courts rejected the claim and the Arizona Supreme Court declined to weigh in, prompting Lemke to agree to a plea deal.
He pleaded guilty to felony murder in exchange for a life sentence, to be served concurrently with the 52-year sentence he received for the theft counts.
After his plea deal, Lemke pressed his double-jeopardy claim in federal court, but was rejected by the U.S. District Court. He appealed to the 9th Circuit, which upheld the lower court Wednesday.
The court said the language of the plea agreement was ambiguous as to whether or not Lemke could appeal. Ultimately, however, it said that did not matter.
The court said double jeopardy protects a defendant from being retried on charges for which he has been acquitted, but Lemke was convicted on theft charges, not armed robbery charges.
Despite Lemke's argument that the jury "impliedly" acquitted him of robbery, since theft is a lesser charge, that is not the case and double jeopardy does not apply, according to the court.
"The record did not establish that the jury had necessarily decided that Lemke did not commit armed robbery," the court concluded.
Burns, who agreed with the majority on the double-jeopardy question, was more succinct on Lemke's right to appeal.
"Lemke got what he bargained for and I see no reason to let him out of his obligations under the plea agreement," he wrote.
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