So we’ll go no more a-roving
So late into the night,
Though the heart be still as loving,
And the moon be still as bright.

For the sword outwears its sheath,
And the soul outwears the breast,
And the heart must pause to breathe,
And love itself have rest.

Though the night was made for loving,
And the day returns too soon,
Yet we’ll go no more a-roving
By the light of the moon.

Gordon Lord Byron

For a year and a half, a yellowing clipping of Meghan O'Rourke's "My Life as a Teenager" has been pinned to the bulletin board above my desk. Now I see that her first book of poetry is on sale at last. Here is Joel Broower, in the New York Times:

O’Rourke’s most ambitious and dynamic poems are driven, like so much in our age, by juxtaposition rather than concatenation, association rather than rhetoric. Information pours in until the poem threatens to burst at the seams.

I saw Fracture with my girlfriend on Friday night. It was precisely the right movie for the occasion, an Anthony-Hopkins-driven crime movie with evil smiles and plot twists. However, one legal issue, central to the resolution of the movie, bugged us both. [UPDATE: Helpful commenters clarify both Federal and California law, and resolve this issue to my mind.] [Spoilers ensue.]

Man assaults and wounds woman. Man is tried and acquitted for attempted murder. Woman dies. Man is now tried for murder. Does Double Jeopardy bar the subsequent trial? Blockburger v. U.S. seems to say yes. Two crimes are the "same" for purposes of the Fifth Amendment unless each has an element that the other does not-- i.e., two crimes are the same if one is a wholly-included subset of the other. Akhil Amar makes a good case that this is not a sensible test, and points out that even the Supreme Court occasionally fails to live up to Blockburger despite how often it lionizes it, but that does appear to be reigning doctrine. But if so, then how does the scheme to re-prosecute Hopkins' character make any sense? Hasn't he already been tried for attempted murder, and isn't he therefore immune to a second murder prosecution for the same facts?

The best answer that we could come up with is that perhaps Blockburger still permits a subsequent prosecution if it's for the facts that occurred post-acquittal. Here, making the medical decision to terminate care for his wife might itself be grounds for a murder charge, at least where done with deliberate intent to kill and in a manner that violates whatever good-faith duties are required by California's medical-care-power-of-attorney statute. This seems pretty far-fetched to me, and wouldn't necessarily allow one to introduce evidence collaterally attacking the previous judgment of acquittal, but seemed worth noting as a possibility.

Incidentally, in researching this question after getting home from the movie, I came across this news story describing almost exactly this situation in New Hampshire. However, it obscures more than it illuminates. This was my favorite part:

"It is clear that this prosecution is for a greater offense after conviction for a lesser offense and hence would violate the Fifth Amendment's guarantee against double jeopardy," Fleming wrote. Fleming also said he has found no previous cases where a defendant convicted of attempted murder was later convicted of murder when the victim of the attack died. . . .
Elizabeth Baker, one of the lawyers prosecuting Hutchinson, said that while there is no case law in New Hampshire that examines specifically how to deal with a case like Hutchinson's, other jurisdictions have allowed an exception to the double-jeopardy rule when a defendant is charged with murder.