dissenting:
Because the outcome of the test devised by the majority is impermissibly contingent on the sequence of the successive prosecutions, because application of the test unnecessarily creates conflicts with other circuit courts, because I cannot agree that we should consider only the indictment in determining whether double jeopardy has attached in a case that has already been tried, and, finally, because the majority opinion confuses the analysis under Grady, a conduct analysis, with the traditional definition of “same offense” under Blockbur-ger, I respectfully dissent from the distinguished majority and its scholarly effort.
I
The first evident flaw in the majority’s test is that whether double jeopardy attaches is contingent on the order in which the cases are tried. What an odd result; not only odd, however, but apparently unconstitutional. The Supreme Court held in Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977), that “whatever the sequence may be, the Fifth *365Amendment forbids successive prosecution and cumulative punishment for a greater and lesser offense.” Furthermore, in Grady, Justice Brennan cited Brown for this proposition. Grady, 110 S.Ct. at 2093 n. 11. I have found no court after the Brown decision that has read the double jeopardy clause as protecting a defendant’s right to be tried in a certain order.
Here, although the majority devises a four-part test claiming to implement Grady, if we reverse the order of trials in Grady and apply the majority’s test, double jeopardy would not in fact attach; to have proved the misdemeanors, the government would not have proved conduct that constituted the entirety of the previously prosecuted offense of vehicular manslaughter. It is clear, however, that the Grady court did not intend such a constitutionally unsatisfactory result: “[I]f in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a ‘component offense’), the Double Jeopardy Clause would bar subsequent prosecution of the component offense.” Grady, 110 S.Ct. at 2093 n. 11.
The majority is silent on this glitch in its analysis.
II
Second, the majority has devised a test that is in conflict with virtually every decision by other circuit courts that have applied the Grady test. Again, however, this conflict arises entirely from the significance that the majority’s test places on the order of successive prosecutions.
In United States v. Gonzalez, 921 F.2d 1530 (11th Cir.1991), the Eleventh Circuit held that Grady did not bar a conviction for conspiring to violate RICO even though the defendant had previously been prosecuted for various drug offenses including possession, importation, and conspiracy. These crimes were used as RICO predicates in the second prosecution. The Eleventh Circuit reasoned that Grady, by its facts and the facts of the cases it relied upon, is limited to single-act crimes. It then determined that the conduct proved in the first prosecution was the defendant’s role in each substantive crime; in the second prosecution, the conduct proved was the defendant’s agreement. Although the two prosecutions may be part of the same transaction or proved by the same evidence, the Eleventh Circuit concluded that the second prosecution did not constitute double jeopardy under the new analysis presented in Grady. See also United States v. Farmer, 923 F.2d 1557 (11th Cir.1991) (no double jeopardy bar to trial of substantive count after prior acquittal of conspiracy count because essence of conspiracy is proof of an agreement which prosecution did not seek to prove to second jury).
The Third Circuit likewise concluded in United States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir.1990), that “[hjowever significant Grady v. Corbin may prove to be in cases of simple felonies ... it has nothing whatsoever to do with the compound-complex [RICO] crimes at issue here.” In Pungitore, the defendant had argued that double jeopardy barred his RICO prosecution because he had been previously convicted of extortion, one of the predicate acts involved in the RICO charge. See also United States v. Esposito, 912 F.2d 60, 64 (3d Cir.1990) (Grady does not bar prosecution on substantive drug offenses that supported predicate acts charged in RICO count of earlier indictment).
An opposite result was reached by the Second Circuit in United States v. Russo, 906 F.2d 77, 78 (2d Cir.1990). In that case the government conceded that “prosecution of the obstruction of justice charges [the predicate act upon which the RICO conspiracy charge was based] following acquittal of the RICO conspiracy ... was inconsistent with the ‘conduct’ test announced in Grady.” Similarly, in United States v. Calderone, 917 F.2d 717, 721 (2d Cir.1990), the Second Circuit held that a second drug conspiracy prosecution was barred by Grady ’s same-conduct test after an earlier and larger conspiracy prosecution resulted in a judgment of acquittal. In Calderone, the court rejected the government’s argument *366that the conduct in conspiracy cases is the alleged agreement itself, rather than the acts from which the agreement can be inferred. Such a view, according to the Second Circuit, would require courts to examine the offenses charged, as Blockburger requires, rather than the conduct that constitutes the offense, as Grady demands. The court then concluded that the second conspiracy prosecution was barred by double jeopardy because the conduct relied upon by the government to prove the existence of the conspiracy in the second prosecution was the same as that relied upon in the first, the only difference being that the defendant was charged with a broader, longer, multi-drug conspiracy in the first prosecution.
How the majority’s test would affect the outcome of the above decisions depends, of course, on the order of the prosecutions. In the ease of a defendant who is first prosecuted for a RICO offense and then prosecuted for the separate crimes constituting the RICO predicate acts, double jeopardy would not be implicated under the majority’s test. This is true because, to establish the lesser crimes in the second prosecution, the government would not prove conduct that constituted the RICO offense; although the lesser crimes may have been elements of the prior RICO offense, they were not themselves the subject of a prior prosecution. Cf. Calderone, 917 F.2d at 725 (Newman, J., concurring) (proposing that under Grady test, conduct must be either entirety of offense previously prosecuted or entirety of any element of prior offense). On the other hand, in the case of a defendant who is tried first for the separate crimes constituting the RICO predicate acts and then tried for the RICO offense, double jeopardy would be implicated under the majority’s test, because, to establish an essential element of the RICO violation, the government would prove conduct that constituted the entirety of the previously prosecuted offenses.
Thus, under the majority’s test, a previous trial for RICO predicate acts would bar a second trial for RICO conspiracy, although the Eleventh Circuit reached the opposite result in Gonzalez. Moreover, the majority’s test would not allow a RICO prosecution after a conviction for the predicate acts, although in Pungitore, the Third Circuit rejected such a double jeopardy challenge. Furthermore, this view of the majority is not consistent with the Second Circuit’s decision in Russo that barred a second prosecution on double jeopardy grounds under a similar fact situation, because in Russo, the RICO conspiracy was prosecuted first. The majority would not have barred the second prosecution because the RICO predicate acts charged in the second prosecution would not be proved by conduct that constituted the entirety of the prior RICO conspiracy prosecution.
In sum, by adopting the majority’s four-part test, the Fifth Circuit appears to stand alone in its interpretation and application of the Grady holding.
III
Third, what I find perhaps the most inexplicable about the majority’s treatment of Grady's conduct test is its notion that the transcripts of the two trials are somehow irrelevant to a determination as to whether the state proved the same conduct in each trial. The majority is fully willing to blindfold itself to avoid knowledge of the “actual” facts. It thus declares, in effect, that the trials did not occur and asks only whether this defendant, who has been through the manifest reality of two trials, has theoretically been exposed to double jeopardy. The majority says, “We look only to the charges as set out in the indictment to determine if Ladner was placed in double jeopardy,” and “the conduct actually proven in the second trial has no bearing on the question of double jeopardy.” Majority Opinion at 361 n. 12.
Declaring undeniable conduct as non-conduct smacks of an Orwellian approach to justice.
The holding of Grady is straightforward, especially when, as here, the question of double jeopardy arises after the second prosecution:
We hold that the Double Jeopardy Clause bars [the] subsequent prosecution if, to *367establish an essential element of an offense charged in that prosecution, the government [proved] conduct that constitutes an offense for which the defendant has already been prosecuted.
Grady, 110 S.Ct. at 2087.
Here, there has been an actual second prosecution; whether double jeopardy attaches is no abstract matter. The specific issue before us is whether the government did indeed prove conduct in the murder trial that constituted the civil rights offense for which Ladner had already been prosecuted. There is only one sure way to analyze this question: compare the transcripts of the respective trials — not theorize about “what if,” when “if” has become a fact.
I challenge the majority to read the transcripts for both trials and then attempt to argue against the proposition that, as a matter of demonstrable fact and palpable reality, in the murder prosecution the state proved the entirety of the conduct for civil rights offense for which Ladner was prosecuted. The transcripts lend themselves to but one conclusion, the state proved the identical conduct to prove murder as it did to prove the civil rights offense. The offense of murder in Texas includes the following statutory elements:
1. a person intentionally and knowingly
2. cause[d] the death of an individual or
3. intended to cause serious bodily injury and committed] an act clearly dangerous to human life that causes death.
See Tex. Penal Code § 19.02(a)(2). To establish its murder case against Ladner, the state proved the following conduct: Lad-ner, the chief of police, entered Garner’s jail cell and hit Garner three or four times on the head with a slapstick without justification, resulting in Garner’s death. The murder trial “conduct” easily supports a verdict of guilty for the crime containing the following elements:
1.a peace officer
2. intentionally subjects
3. a person in custody
4. to bodily injury
5. knowing his conduct is unlawful.
See Tex. Penal Code Ann. § 39.021(a)(1). Although in the civil rights trial, the state was, of course, required to prove Ladner’s knowledge of the unlawfulness of his conduct, this element was clearly a reasonable inference to be drawn from the conduct described above; indeed, the element of mental state was satisfied in each trial from essentially the same conduct.1
Nevertheless, the majority eschews the need to compare the conduct in the respective prosecutions, thus, once again blithely ignoring Grady. The Grady Court expressly compared the conduct in each of the prosecutions to conclude that the second prosecution was barred:
By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted — driving while intoxicated and failing to keep right of the median — to establish essential elements of the homicide and assault offenses. Therefore the Double Jeopardy Clause bars this successive prosecution....
Grady, 110 S.Ct. at 2094.
Here, it is not disputed that the state has proved the entirety of the conduct for which Ladner was prosecuted in the civil rights trial to establish the essential elements of the murder offense.
IV
Fourth, I respectfully suggest that a crucial error in the analysis of the majority is its confusion of the “same conduct” test of Grady with the Blockburger analysis of “same offense.” The majority certainly is correct to consider Blockburger as a “first prong” in its analysis and to point out that the civil rights violation required three additional elements that are not included in the murder offense, i.e., peace officer, cus*368tody, and knowledge. The majority’s error, however, is to revert to a discussion of the statutory elements in the second step of its two-step analysis when it has already concluded in the first step that the statutory elements survive the Blockburger test of “same offense.” Under Grady, the focus of the double jeopardy analysis is on the conduct, proved or to be proved in the respective trials, and not on the statutory elements. Thus, the majority’s analysis of the Grady holding slips into what is hardly more than another application of Blockbur-ger.
V
With great respect for the hard work of my colleagues, I view this case more simply than does the majority. I would devise no complex Grady test; I would only decide the case before us. I would hold that here we only need ask whether, based on conduct shown by the state in the second trial, at any point therein, a properly instructed jury could return a verdict for the previously prosecuted offense. Double jeopardy attaches if the inquiry is answered in the affirmative, because at that point it becomes absolutely clear that the government has proved conduct that constitutes the offense of the first prosecution. In short, there was a point in the murder prosecution where the state had unavoidably (or perhaps necessarily) proved that Ladner, a peace officer, physically assaulted and, thus, caused the death of Garner while in custody. A reasonable jury could infer from this conduct, including a violent beating, that Ladner knew he was violating Garner’s civil rights.
Undergirding this approach is my belief that it is a mistake, likely to boomerang, to establish any specific test for application in all cases in which the defendant raises a double jeopardy challenge under Grady. My view is supported by Justice Scalia’s statement in his dissent that “[i]t is not at all apparent how a court is to go about deciding whether the evidence that has been introduced ... at the second trial proves conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady, 110 S.Ct. at 2104. Thus, when it is clear, as it is to me here, that the same conduct was used to establish the offense in each prosecution, I would go no further in the analysis.
For the reasons set forth here, I respectfully dissent.
. At the civil rights trial, the state argued that Ladner’s knowledge of the unlawfulness of his conduct was also shown through Ladner’s testimony about his prior training in the appropriate use of force against prisoners. He did not testify at his murder trial. The violent beating, however, spoke for itself; a reasonable juror could easily have concluded that Ladner possessed knowledge of the unlawfulness of his conduct.