In re Richard (C.G. Ct. Crim. App. 7 Jan 2026)

Richard sought extraordinary relief in the nature of a writ of mandamus to compel dismissal with prejudice of an involuntary manslaughter specification referred for a second general court-martial. She invoked the Fifth Amendment’s Double Jeopardy Clause and Article 44, Uniform Code of Military Justice (UCMJ).

Richard’s initial court-martial occurred in 2021 after the tragic death of her infant daughter. The Government charged her with two murder specifications under Article 118, UCMJ (unpremeditated murder and murder while engaging in an inherently dangerous act). The panel acquitted Richard of both murder specifications, convicted her of the lesser included offense (LIO) of involuntary manslaughter under Article 119(b), UCMJ, and found the child’s death caused “by asphyxia.”

On appeal, the CGCCA held the original involuntary manslaughter specification failed to provide constitutionally adequate notice of the act(s) or omission(s) forming the basis for the conviction. It accordingly set aside the conviction and dismissed the specification without prejudice, authorizing a rehearing (Richard I).

The Government then referred a new involuntary manslaughter specification alleging that Richard killed the child by “tightly swaddling [the child], placing [the child] in the bed face down, and using her hand to press [the child]’s head into the bed.” Richard moved to dismiss on double jeopardy grounds, which the military judge denied, prompting her mandamus petition.

Issues Presented

1. Whether double jeopardy barred rehearing because the first conviction was based on an ambiguous verdict;
2. Whether the appellate court’s authorization of rehearing amounted to an “other trial” under R.C.M. 810(e) without proper authorization; and
3. Whether she could be retried on involuntary manslaughter because the first trial lacked a proper LIO instruction on the second murder specification and the original LIO instruction was legally incorrect.

1. There is a high threshold for mandamus relief. The a petitioner must show (1) no other adequate remedy exists, (2) a clear and indisputable right to the writ, and (3) that issuing the writ is appropriate under the circumstances.

Under the Fifth Amendment and Article 44(a)-(b), UCMJ, a second trial for the same offense generally is prohibited. However, when a conviction is reversed on appeal (for reasons other than insufficient evidence), retrial ordinarily is permitted because the original judgment did not become final. Citing Supreme Court law, the court explained that successful appeal on any ground other than insufficient evidence does not bar further prosecution.

Court’s Analysis and Rulings.

1. Ambiguous Verdict Argument. Richard argued that her first conviction was ambiguous—preventing identification of the exact factual basis for the involuntary manslaughter verdict—and that retrying her on that conduct violated double jeopardy.

The court acknowledged that a general verdict is “ambiguous” in the everyday sense, as it does not articulate the specific factual theory on which members based their finding. But the opinion clarified that the judicial doctrine of an ambiguous verdict applies only in the narrow class of cases where a single specification charges multiple occasions or acts, and the verdict does not clarify which occurrence it applies to. Citing United States v. Wilson and related precedent, such as Walters, the court explained that an unobjected-to general verdict unambiguously includes guilt as to each charged act unless the defense produced a special finding indicating otherwise.

On the facts of Richard I, the panel’s general verdict of involuntary manslaughter—distinct from acquittal of murder—effectively resolved intent: the members found no intent necessary for murder but did find culpable negligence, the mental element for involuntary manslaughter. The court rejected that this situation implicated ambiguous verdict doctrine. There was no factual basis to conclude that the panel acquitted her of specific acts now charged; at most, the record showed uncertainty inherent to general verdicts. So, CGCCA found that the panel’s verdict did not create ambiguity in the legal sense that would trigger double jeopardy protection.

2. Rehearing vs. “Other Trial” Argument. Richard argued that the second prosecution was improperly characterized as a rehearing when it was in fact an “other trial” under R.C.M. 810(e), which she argued the appellate decision did not authorize.

The court explained that the statutory term “rehearing” encompasses what R.C.M. 810 labels a “new trial” or “other trial.” In essence, the court order authorizing rehearing under Article 66(f)(1)(A)(ii), UCMJ effectively authorized the subsequent trial on a new specification that corrected the defects previously identified. The court noted that R.C.M. 810(e)’s definition of an “other trial” includes scenarios where original proceedings were declared invalid due to a failure of a charge to state an offense—precisely this case. No error here.

3. LIO Instruction and Jeopardy Continuance. Richard argued that because no LIO instruction was provided under the second murder specification, and because the original LIO instruction was legally incorrect, jeopardy had terminated as to involuntary manslaughter.

The court rejected this argument, explaining that the acquittal on one murder specification does not necessarily immunize the accused from prosecution on related LIOs arising from the other murder specification. Additionally, the fact that an LIO instruction in the first trial may have been legally imperfect did not render the first trial’s jeopardy attachment a nullity. The Government countered—and the court agreed—that when the conviction was reversed for technical reasons unrelated to evidence insufficiency, retrial on the LIO charge, properly stated, remains permissible. Because the involuntary manslaughter specification now corrects prior defects, retrial on that specification does not offend double jeopardy.

1. Double Jeopardy in Military Courts: The decision affirms that military courts follow the Supreme Court’s civilian double jeopardy framework: retrial after a reversal for reasons other than insufficient evidence generally is permissible. This aligns with Bravo-Fernandez v. United States and United States v. Scott. Military appellate courts thus will closely parse whether an appellate reversal reflects a final judgment on the merits of evidence sufficiency.
2. Ambiguous Verdict Doctrine: The opinion clarifies the narrow scope of the ambiguous verdict doctrine. Mere uncertainty in members’ factfinding does not equate to an ambiguous verdict barring retrial absent the specific pattern of multiple allegations and indistinct findings that doctrine contemplates.
3. Rehearing Authorization and RCM 810: The court’s reasoning underscores that appellate authorization of rehearing under UCMJ Article 66 can encompass what the procedural rules label “new” or “other” trials. This provides prosecutorial flexibility where correcting defective specifications is necessary to vindicate justice without constitutional infirmity.

And see generally, Bravo-Fernandez v. United States, 580 U.S. 5 (2016) (when conviction is vacated on appeal for legal error unrelated to evidentiary insufficiency, Double Jeopardy Clause does not bar retrial even if the jury simultaneously returned acquittals on related counts); United States v. Scott, 437 U.S. 82 (1978).