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Double Jeopardy: And the categories are …

January 11, 2012

1. History, 2. Law, 6. Trial, 7. Post-Trial

Double Jeopardy:  And the categories are …

We’re gonna talk about the Constitution’s Double Jeopardy Clause – nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb – but excuse me for a moment while I watch this video (sorry about the ad up front):

 OK.  That just cracks me up.  Where was I?  Oh yeah, Double Jeopardy.

Double Jeopardy has four applications:

  • It bars the government from prosecuting a person a second time for the same offense after he has already been tried and acquitted;
  • It prohibits the government from prosecuting a person a second time for the same offense after he has already been convicted;
  • It forbids the government from imposing multiple punishments upon a person for the same offense in successive proceedings; and
  • Finally, in some circumstances, it bars the government from prosecuting a person a second time for the same offense after a judge prematurely terminated his first trial, either by declaring a mistrial or by dismissing the charge against him before the fact-finder reached a verdict in the case.

The history of the concept of Double Jeopardy is ancient:

The Talmud, a compilation of the teachings of the rabbinic sages, proclaims that in capital cases, an acquittal may not be reversed.” In the Old Testament, Deuteronomy 25:2 states that when a dispute between men is brought before a court, a guilty man who deserves to be beaten shall be flogged in the presence of the judge according to the measure of his misdeeds. The Talmud relates that Rabbi Akiba relied upon this verse to explain why Jewish law prohibited a person liable to a death penalty by a human tribunal from also being flogged. Rabbi Akiba interpreted the verse to mean that “you make [the guilty man] liable to punishment for one misdeed, but you cannot hold him liable [in two ways as] for two misdeeds… [[i].e., death and lashes].”

The Greeks and Romans also had provisions for Double Jeopardy in their laws.  The Brits were all over the map on the protections thanks in large part to the vagrancies of the in-bred Monarchy.  American laws recognized Double Jeopardy in the early 1600s, and when the Bill of Rights was drafted inclusion was not an issue – merely the wording.  The link above gives a very detailed history.

There’s a natural tension surrounding Double Jeopardy.  Assume that someone is innocent.  Having to defend themselves – the cost, bang on their reputation and family, implications for job security, and so on – can be burdensome.  We require a speedy trial to resolve this cloud hanging over their head.  And when acquitted, we want finality.  It’s done.  No one has an issue with that outcome.

Now assume that the person is guilty.  Let’s take OJ Simpson, for example.  A jury acquitted him.  I have no idea if that was an accurate verdict or not, but a lot of people believe he was guilty.  If he confessed on the courtroom steps immediately after the trial or if damning evidence was discovered after the jury returned its verdict, none of it would matter.  The suspicions of many people would become knowledge for all – he killed his wife and her boyfriend, and got away with it.  The US Constitution responds with, “Yeah, so what? Next case.”

Is that a problem?  No.  Blackstone said it best:  Better that ten guilty persons escape than that one innocent suffer.  That is our system.  We have a set of constitutional rights which protect all of us, the innocent and guilty, equally.  End of story.

Let’s look at a trial and acquittal.  Is that always the end of prosecution?  Not necessarily.

Consider the prosecution of Harry Aleman.  He was charged with murder.  He was acquitted after he bribed the judge (yes, it was in Chicago – how did you know?).  Sixteen years later when evidence of the bribe was discovered, the government sought to re-indict him.  Bottom line:  Legit.  The first trial was fraudulent.

Second, what if the jury finds a defendant guilty, but the defense successfully raises a Motion for Judgment Notwithstanding the Verdict?  The defendant walks out of the courtroom on that day, yes, but the prosecution can appeal the overturning of the verdict by the judge.  If successful, it does not result in a new trial.  The jury verdict is merely reinstated.

Along these same lines, the prosecution can appeal a sentence.  That is not seeking to place an additional sentence on the defendant, but merely to test the appropriateness of the sentence imposed by the trial court.

There’s even more splitting of hairs.  Recall that we are all more like 50 countries than 50 subdivisions of one country.  Assume a person conspires to commit murder in New York, and then commits the murder in Pennsylvania.  Does prosecution in one state preclude prosecution in the other?  No.  We call it “separate sovereigns.”  The governmental entities are acting according to their own laws.  Notice that he is not being charged with conspiracy and murder in either PA or NY.  The situs of the crime is the jurisdiction over the prosecution.  NY can move forward with the conspiracy indictment, and PA can do so with the murder indictment.  We saw this play out in a slightly altered fashion when the best-armed gang in Los Angeles – the LAPD – slapped around Rodney King (crackhead, wife beater).  California got them for the assault and misconduct issues; the feds got them for the Civil Rights issues.

Going back to OJ, Double Jeopardy does not apply when different legal standards are in play.  His criminal trial was Guilt Beyond a Reasonable Doubt.  His civil trial for wrongful death was a Preponderance of the Evidence (the Coin-Flip Test).  His criminal acquittal did not preclude his civil trial.

How weird can Double Jeopardy get?  Blueford v Arkansas is due for oral argument at SCOTUS in late February.  Here’s a snapshot of what happened at trial:

At Blueford’s trial, the judge instructed the jury to deliberate on lesser included offenses only after unanimously voting to acquit Blueford on greater offenses.  This meant, for example, that unless and until the jury unanimously voted “Not guilty” on capital murder, it could not even discuss the charge of first-degree murder.  After some jury deliberation, the foreperson reported to the judge that the jurors had all voted “No” on capital murder and first-degree murder (the greater offenses) but were deadlocked on the charge of manslaughter (a lesser included offense) and—as instructed by the judge—did not even begin deliberation on the fourth (and least serious) charge of negligent homicide.

And then it got weird.  Instead of accepting the jury’s acquittals on the two charges and declaring a mistrial on the lesser offenses, he declared a mistrial for all of it.  Blueford was re-indicted, and that is what is going to SCOTUS.  Does the Double Jeopardy Clause preclude the second prosecution?  There’s good arguments either way.  Technically, no verdict was announced.  Yet, didn’t the judge choose to prevent an announcement that could have been made based upon the deliberations?  I’m not suggesting that this judge was biased, but if a court is allowed to manipulate the announcement of a verdict, then manipulation is on the table.

Let’s hit one last issue.  Since we can’t get two punishments, we need to define punishment.  The topic has been litigated well in the Megan’s Law context.  Convicted sex offenders were sentenced, then Megan’s Law was passed, then these same convicted folks had registration added to their sentence.  Isn’t public registration a “punishment”?  Seems not.

Catch the rest of the 3d Circuit’s analysis begun under the heading “A. The Artway Standard” at 1093:

Recognizing “that the appropriate ‘punishment’ analysis depends on the context,” we derived an “analytical framework for this case.” Id. 81 F.3d at 1261, 1263. Specifically, we concluded that a “measure must pass a three-prong analysis — (1) actual purpose, (2) objective purpose, and (3) effect — to constitute non-punishment.” Id. 81 F.3d at 1263.

In essence, while there may be something that could be viewed as “punishment” coming from a new law, if the law’s requirements withstand a review of non-punishment purposes and the effects are not extremely onerous, then any incidental punishment as a result of the law is excused and does not violate Double Jeopardy.

Kansas grappled with the issue in their Sexually Violent Predator Act in 1994.  The sum and substance was to take sex preds that had fulfilled their criminal sentence but still posed a danger and ship them to civil confinement.  The case hit SCOTUS in Kansas v. Hendricks.  Same result – there’s sufficient life in the law outside punishment to stand on its own.  You knew precisely where Justice Thomas was going when he wrote this – at 362:

Moreover, unlike a criminal statute, no finding of scienter is required to commit an individual who is found to be a sexually violent predator; instead, the commitment determination is made based on a “mental abnormality” or “personality disorder” rather than on one’s criminal intent. The existence of a scienter requirement is customarily an important element in distinguishing criminal from civil statutes. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963). The absence of such a requirement here is evidence that confinement under the statute is not intended to be retributive.

Thomas was disposing of issues as efficiently as Robinson Cano launches BP into the right-field seats.

The takeaway from this writing is this:  For such an ancient concept, we sure are seeing a lot of action in our courts up to and including SCOTUS.  Double Jeopardy is an issue worth following closely.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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