Should issue preclusion apply in criminal cases?

STATEMENT OF THE QUESTIONS Respondent was charged with premeditated murder and felony murder (with torture as the predicate) for the suffocation death of his live-in girlfriend. A jury acquitted him of count one but could not reach a verdict on count two. Before the retrial on count two, Respondent pleaded guilty to a reduced charge of second-degree murder. The trial court had to vacate the conviction, however, because under federal issue preclusion doctrine, the jury’s not-guilty verdict on count one precluded retrial on count two. The Michigan Court of Appeals later held that issue preclusion also barred retrial on the torture predicate because the count-one acquittal necessarily determined that Respondent was not the perpetrator. There are three questions: 1. Since issue preclusion is a civil doctrine and not originally part of the double jeopardy clause, should it apply in criminal cases? Should Ashe v Swenson be overturned? 2. Since issue preclusion only applies when a jury has necessarily decided an issue, should the fact that the jury hung on that issue in another count defeat the doctrine’s application? Should Yeager v US be overturned? (i) 3. Since a rational jury could have grounded Respondent’s acquittal of murder in something other than reasonable doubt as to his identity as the perpetrator (such as lack of intent to commit murder), should issue preclusion bar retrial on other counts simply because it may have been more likely that he was acquitted on the basis of identity? Should the Michigan state courts’ failure to apply Ashe and Yeager’s “no rational jury” standard be overturned? (ii) PRIOR PROCEEDINGS 1. On January 28, 2016, Respondent was charged with first-degree premeditated murder and first-degree felony murder, and he was arraigned on the information on February 18, 2016 in Michigan’s Third Circuit Court, docket number 16-001235-01-FC. A jury trial began May 12, 2016, and concluded May 20, 2016, with the jury acquitting on count one and a mistrial declared on count two. 2. On September 12, 2016, Respondent pleaded guilty to second-degree murder instead of going to trial on count two. That conviction was vacated by the Third Circuit Court on May 19, 2017. 3. The order vacating Respondent’s conviction was affirmed by the Michigan Court of Appeals on July 28, 2017 in docket number 338938, and by the Michigan Supreme Court on October 31, 2017 in docket number 156394. This court denied Petitioner’s petition for certiorari on March 26, 2018 in docket number 17-1097. 4, On May 19, 2017, Respondent was charged with torture arising out of the same facts and circumstances, and he was arraigned on the information on June 27, 2017 in Michigan’s Third Circuit Court, case number 17-00525301-FC. The Circuit Court entered an order denying Respondent’s motion to dismiss on March 12, 2018. (iii) 5. The trial court’s order was reversed by the Michigan Court of Appeals on March 5, 2019 in docket number 343154, and leave to appeal was denied by the Michigan Supreme Court on September 10, 2021 in docket number 159516. (iv)