Jones v. Thomas/Dissent Brennan

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

I join in Justice SCALIA's dissenting opinion, with the exception of its closing footnote. I adhere to my view that the Double Jeopardy Clause requires, except in very limited circumstances, that all charges against a defendant growing out of a single criminal transaction be tried in one proceeding. See Ashe v. Swenson, 397 U.S. 436, 448-460, 90 S.Ct. 1189, 1196-1203, 25 L.Ed.2d 469 (1970) (BRENNAN, J., concurring); Morris v. Mathews, 475 U.S. 237, 257-258, 106 S.Ct. 1032, 1044-1045, 89 L.Ed.2d 187 (1986) (BRENNAN, J., dissenting). For this reason I do not agree that the State is free to retry respondent for a nonjeopardy-barred lesser included offense.