Radley Balko of The Huffington Post is currently doing a series on the Myths of the Criminal Justice System,and I think it’s about time that a major newspaper shine light on many of these issues. Here an excerpt from his first article:


Myth 1: You Can’t Be Tried More Than Once For The Same Crime

The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction.

But there are some exceptions. First, the protection only comes into play once a jury has convicted or acquitted a defendant. So in trials that end with a hung jury or a mistrial, the prosecution can usually bring the same charges again. One particularly egregious example is Curtis Flowers of Mississippi, who has been tried an incredible six times for the murder of four people in 1996.

Second, the U.S. Supreme Court has ruled that the government can charge a defendant with both a crime and the conspiracy to commit that crime without violating the constitutional prohibition on double jeopardy. This gives the government two opportunities to convict for is essentially the same offense. Conspiracy is often easier to prove than the underlying crime. It also gives prosecutors a way to rope in alleged offenses they can no longer charge separately due to statutes of limitations.

Finally, there is the “separate sovereigns” exception to double jeopardy. This allows a defendant to be tried, convicted and sentenced for the same crime in both state and federal court. The most well-known example of the separate sovereigns exception is when the Los Angeles police officers who beat Rodney King were acquitted in state court, then convicted in federal court of violating King’s civil rights.

But it’s becoming more common in high-profile cases, where both state and federal prosecutors want a chance at a career-making conviction. Michael Vick, for example, was twice convicted on charges related to his dogfighting operation, once under Virginia law and once under federal law. (He was also indicted on various dogfighting-related crimes and conspiracy to commit those crimes.) As the federal criminal code continues to grow, it seems likely we’ll see more examples of defendants who are tried twice for the same crime, particularly in cases involving celebrities and politicians.

I have had many clients who believed this myth and were sorely disappointed to find out how many exceptions there are to the double jeopardy rule. For example, in this state, it’s common for defendants on probation for an old offense to get sanctioned with jail time for “a new law violation” when they are found guilty of a subsequent offense. In other words, for example, a defendant could face 30 days as a sentence for a new crime, then have to do another 30 days somewhere else if the Court finds that they violated probation on an old crime by simply getting the new case. Even worse, defendants can face a probation violation for the new crime even if they were acquitted of the new crime because the burden of proof for a probation violation is much lower than the “beyond a reasonable doubt” burden of proof for a conviction on a new crime. I’ve also had clients run into the problem of separate sovereigns. For instance, I had a client convicted of murder in State court after federal prosecutors gave her immunity for the offense (in exchange for her cooperation) decades ago. These loopholes in the double jeopardy rule are unfair and often lead to excessive punishment, and I hope that other readers of Mr. Balko’s article are as disgusted as I am about it!

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