Justice Gorsuch Heads Trio of Dissenters as Majority Led by Justice Barrett Sides Against Native American in Double Jeopardy Case


Justices Gorsuch and Barrett

Associate Justice Neil Gorsuch (left), Associate Justice Amy Coney Barrett (right).

The Supreme Court of the United States ruled 6-3 that Navajo tribe member Merle Denezpi has no constitutional right to avoid successive prosecutions for the same incident. After Denezpi committed a sexual assault on tribal land, he was first prosecuted in the Court of Indian Offenses, then again later, in U.S. district court. He appealed, arguing that the successive prosecutions trigger the double jeopardy clause of the U.S. Constitution. A majority of SCOTUS justices disagreed.

The judicial lineup, however, was somewhat atypical. Justice Amy Coney Barrett wrote for the majority, which included Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and Brett Kavanaugh. In dissent stood Justice Neil Gorsuch, whose opinion was partially joined by Justices Sonia Sotomayor and Elena Kagan.

Denezpi pleaded guilty to criminal assault in the Court of Indian Offenses (known as “CFR courts”) in 2017. He was released on time served. However, after a second investigation, Denezpi was indicted by a federal grand jury for the same incident, which had been a violent sexual assault. Denezpi was then prosecuted in federal court in Colorado, was found guilty, and was sentenced to 30 years in prison and ten years probation.

Denezpi appealed and lost at the U.S. Court of Appeals for the 10th Circuit. At the nation’s highest court, Denezpi has now lost again.

Justice Barrett penned the majority opinion for the court. She called the case “a twist on the usual dual-sovereignty scenario.” According to Barrett and the six-member majority, Denezpi’s prosecutions did not amount to successive prosecutions by different sovereigns for the same offense. Rather, she said, he was separately prosecuted by the same sovereign for different offenses.

Barrett began her 13-page…


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