From: Randall Parker 

In , the sagacious
blucy{at}mediaone.net Bill Lucy perspicated:
> > Besides, a lot of those sovereignty issues were between the state and
> > federal governments. They were a turf war between those governments.
> > Most of them are not relevant to the double jeopardy issue.
>
> That was my point, Randall. The author used the double sovereignty cases
> to make a point about double jeopardy. The irrelevance struck me.

Bill, I don't know what all those cases were about. You may well be right
in saying he misused the cases.

But I still think you are missing the bigger point: If we did not have both
a federal and a state level of government then the double jeopardy clause
would prevent people from being tried twice under circumstances where they
currently can be tried twice.

Do you disagree with that?

The only reason I could see where that argument would be incorrect would be
if the feds had all the laws about murder and a federal court jury found
someone not guilty of murder then the prosecutor could still then bring
charges against the defendant for civil rights violation.

Under those circumstances could a federal prosecutor do that?

Or, if that is too hypothetical for you (I'm supposing states do not exist
after all) what if the original murder charge was brought under federal
law. We do have federal laws about murder right? Could the defendant then
be charged with civil rights violations after being found not guilty of
various levels of murder charges?

> You think the size of government mitigates the issue. It doesn't.

I look at it today and think that if the federal criminal code was a lot
smaller then fewer people be getting both federal and state charges brought
against them at the same time for the same activities. Do you disagree?

So I fail to see why size of the Federal criminal code is not a factor in this.

> Sometimes it causes a bigger problem. Again, read Dennison. Size of
> government did not make it easier for Taney.

Aside: Where do you get all these rulings? How many pages, for instance,
are all the S.C. rulings for the 19th century?

Can you get them in book collections?


> You're appropriating someone else's idea. If you aren't comfortable
> defending it, don't defend it. But don't ask me to. It's your argument.
> Defend it.

I think I'm not defending all the points he made. I have a particular view
about this that I held before reading that article. I have tried to make
that view clearer above.

> He is misusing a point of law, which causes a conclusion to be made. You
> accept the conclusion, without feeling the need to validate the
> hypothesis.

I'm not using his interpretation legal cases since I know so little about
them. His article just reminded me of a previously held view. Since I don't
know all those legal cases I'm being a lot more concrete in my reasoning. I
see people getting found not guilty in state courts and then I am seeing
the US DOJ bringing charges against them.

Am I wrong to think that that is effectively double jeopardy? It quacks
like a duck to my admittedly very non-legal mind.

> Believe me, Randall. I don't believe you are a fool. But you are
> accepting an argument without much behind it. I might call you naive for
> accepting it, but a fool?

Hey, I've been a fool before. Just ask my last girlfriend .

> But double jeopardy isn't related to a "number of laws" issue, even if
> you want it to be.

If both the state and federal levels do not have laws that cover the same
stuff then they can't both charge one for the same act.

If the line between state and federal jurisdictions was clearer then it'd
be harder for there to be overlapping laws. But while it is necessarily the
case that any such line will be hazy today the line has been fairly well
obliterated by a pandering Congress competiting for the socccer mom vote.

Now, if a state charges you with murder and the feds charge you with civil
rights violations then I have to say that the "number of laws"
issue still has bearing. I mean, the same act performed by a person
suddenly has n different meanings. Its a floor wax and a dessert topping.

>
> Almost every double jeopardy case that has come before the court has
> been criminal cases involving larceny, burlary or robbery. These are old
> laws, both federal and state, and men have been tried and convicted in
> both federal and state courts for the same crime. This pretty much
> stopped with Benton v. Maryland (395 U.S. 784) (1969), when the court
> decided the due process clause of the Fourteenth Amendment applied to
> the states in the case of double jeopardy.

Certainly took them long enough.

> What Benton did not do (and you should read the Stewart dissent in the
> case to understand this better) is prevent the Federal government from
> prosecuting on an equivalent offense in Federal court on what was
> decided in a state court.

So where did you read this? I mean, again, how do you get all this stuff?

Aside: I hate having to read so much on-line. I get sick of sitting in this chair.

> What makes this difficult is that terms like "acquittal",
"multiple
> punishments", and "same offense" cause much struggle
within a court.

Not enough struggle IMO.

> As an example, if a man is found in an apartment with stolen goods from
> the apartment, he might be convicted of burglary. After the conviction,
> a body is found, and evidence points to him as murderer. It's obvious he
> can be convicted, even though the events occured simultaneously, and the
> double jeopardy rule does not apply.

But if the civil rights violation is that you murdered someone then did you
murder someone _and_ violate their civil rights? If so, that's a pretty
wide open door.

> Another example (a real one this time): 3 African-Americans leave their
> army reserve training and pass through a small town. Their out-of-state
> plates cause three members of the KKK to follow them, eventually
> pointing a shotgun into their car and killing one of them. A jury of
> "peers" (2/3 were KKK members themselves) found the three not guilty,
> even with a confession and corroborating information. The U.S.
> government brought a conspiracy charge against them, and there was an
> eventual conviction.

Well, the idea of having some way to retry them when the local jury is
essentially corrupt seems very justified. But should this be an open
license for the Feds to retry anyone who gets found not guilty on a case
that offends a lot of people?

BTW, in the Diallo case were 4 of the jurors black?

> You might recognize the second example as U.S. v. Guest (383 U.S. 743)
> (1966).

It rings a historical bell.

>
> Was that a violation of the double jeopardy clause? Well, the problem is
> that the point wasn't raised by the defendents.
>
> Was it good public policy? It got some evil people off the streets. If
> the Luima cops get convicted of a civil rights violation, will that do
> the same? I don't know. I do think there is a feeling that the acquittal
> was a miscarriage of justice.

But there are lots of acquittals that are a miscarriage of justice. So
should we just drop all pretenses and repeal the double jeopardy clause?

I mean, if there is a problem with the jury system or with local law
enforcement then I'd like to see it fixed in a way that doesn't skirt
around the intent of the Founders. As it stands now I think they are
skirting around big time.

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