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.
- The best places to celebrate Fall in Phoenix
- Infamous athletes who did the most time for their crimes
- 2016 baseball highlights, bloopers and blunders
- See how CFOs really feel about business in the Valley
- The best television shows on the internet
- A preseason guide to avoid holiday weight gain
- The 5 worst things you could do for your roof
- 6 coolest things brewing in Arizona
- The virus that keeps head and neck cancers on the rise
- State Fair ‘Kid Reporter’ has all the angles covered
- 4 important things to know about timeshare maintenance fees
- Signs of delayed car crash injuries
- The truth about sports concussions
- The Alzheimer's epidemic: Facts you need to know
- The season is here, keep your Fantasy Football team strong all season
- 8 TV shows you can't miss this fall
- Football is here: 6 tips to make this your best season ever
- Gameday recipes and beers to match
- 6 reasons the Cardinals are driven to win the Super Bowl
- The Pac-12 football season nears kickoff
- Tips to get ready for a pain-free golf season
- Protect your family with these 7 home security features
- How to train like an Olympic swimmer
- 2016 Olympics: A guide to must-see TV events
- The bride's guide to feeling your best on your wedding day
- Deciding when you need knee surgery
- Celebrating Fourth of July is much cooler in these AZ towns
- Top ten road trip bathrooms in America
- Six things causing a pain in your neck
- 5 things to make your summer move easier