US SUPREME COURT DECISIONS

Petitioners robbed a bank van of $281,000 in cash and killed the guards by dumping them into a lake in sacks weighted with rocks. Petitioners were convicted of first-degree murder in an Arizona state court. At a separate hearing, while finding that the statutory aggravating circumstance that the offense was committed for "pecuniary gain" was not present because it applied only to contract killings, the trial judge sentenced petitioners to death upon finding that the statutory aggravating circumstance that the offense was committed in "an especially heinous, cruel, or depraved manner" was present. The Arizona Supreme Court, while reversing and remanding for a retrial on other grounds, held that the evidence was insufficient to support a finding of the "especially heinous" circumstance, but that the trial judge erred in finding the "pecuniary gain" circumstance limited to contract killings, and that, if petitioners were again convicted, the judge might find this circumstance present. On remand, petitioners were again convicted of first-degree murder and the trial judge again sentenced them to death, finding that both the "pecuniary gain" and "especially heinous" circumstances were present. The Arizona Supreme Court affirmed, rejecting petitioners' argument that the Double Jeopardy Clause barred reimposition of the death penalty. The court found the evidence still insufficient to support the "especially heinous" circumstance, but sufficient to support the "pecuniary gain" circumstance.

Held: Reimposing the death penalty on petitioners did not violate the Double Jeopardy Clause. Pp. 476 U. S. 152-157.

(a) When a conviction is reversed on appeal, it is nullified and "the slate wiped clean,'" so that, if the defendant is convicted again, he may constitutionally be subjected to whatever punishment is lawful. Bullington v. Missouri, 451 U. S. 430, 451 U. S. 442. This rationale is, however, inapplicable where a jury agrees or an appellate court decides that the prosecution "has not proved its case." Id. at 451 U. S. 443. Therefore, the relevant inquiry in these cases is whether the sentencing judge or the reviewing court has "decided that the prosecution has not proved its case" chanrobles.com-red

Page 476 U. S. 148

for the death penalty, and hence has "acquitted" petitioners. Bullington v. Missouri, supra; Arizona v. Rumsey, 467 U. S. 203. Pp. 476 U. S. 152-154.

(b) The trial judge's rejection of the "pecuniary gain" aggravating circumstance was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Moreover, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied. Pp. 476 U. S. 154-157.

144 Ariz. 388, 698 P.2d 183, and 144 Ariz. 412, 698 P.2d 207, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J.,and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 476 U. S. 157.