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89 Tul. L. Rev. 909 (2014-2015)

handle is hein.journals/tulr89 and id is 967 raw text is: RECENT DEVELOPMENTS State v Davenport: The Louisiana Supreme Court Ignores Federal Constitutional Double Jeopardy Protections in Favor of Criminal Reprosecution I. O VERV IEW .................................................................................... 909 II. B ACKGROUND .............................................................................. 910 III. C ouRT's D ECISION ...................................................................... 913 IV A NALY SIs ..................................................................................... 9 17 I. OVERVIEW At Morris Davenport's trial for aggravated rape, the prosecution attempted to prove the victim suffered from a mental infirmity-a requisite element of the crime, defined as an IQ score of 70 or less- solely by offering evidence of school test scores that did not address IQ.' At the close of the prosecution's case, Davenport moved for an acquittal on the basis that, by not producing direct evidence of the victim's IQ score, the prosecution failed to prove mental infirmity as defined by the statute.' Without sending the issue to the jury, the trial judge eventually agreed and granted Davenport's motion for acquittal After he dismissed the jury pursuant to the acquittal, the trial judge realized he did not have authority to grant a motion for a preverdict acquittal in a jury trial; the statute on which the motion was based applied only to bench trials.! The trial judge further reasoned that, having dismissed the jury, it was physically impossible to continue the trial in accordance with law and so he declared a mistrial, over Davenport's objection Davenport subsequently filed an application for supervisory review of the mistrial with the Louisiana Court of Appeal for the Third Circuit, arguing that any retrial following the acquittal would violate prohibitions against double jeopardy.' 1. State v. Davenport, 2013-1859,p. 6 (La. 5/7/14); 147 So. 3d 137,141. 2. Id. 3. Id 4. Id at pp. 2-3; 147 So. 3d at 138-39 (quoting LA. CODE CRaM. PROC. art. 778 (2014)). 5. Id at p. 3; 147 So. 3d at 139 (quoting LA. CODE CRIM. PROC. art. 775(5)). 6. Id. 909

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