Double Jeopardy

There were two double jeopardy cases on the Supreme Court docket this week, both involving the Fifth Amendment Double Jeopardy Clause.

The Double Jeopardy Clause does not bar one sovereign from proceeding on a charge of which an accused has been acquitted by another sovereign. Furthermore, the doctrine of collateral estoppel is inapplicable to prosecutions by a separate sovereign. United States v. Cuellar, 27 M.J. 50, 54-55 (C.M.A. 1988), cert. denied, 493 U.S. 811 (1989). Since appellant could have been reprosecuted by the military for first-degree assault or its equivalent, he clearly could be prosecuted for the entirely separate offense of conduct unbecoming an officer, which was committed at a wholly distinct place and time. Appellant's subordinate contention that his prosecution for falsely testifying was barred by Army policy also fails.

United States v. Schneider, 38 M.J. 387, 391-92 (C.A.A.F. 1993).  See also United States v. Wheeler, 40 M.J. 242 (C.M.A. 1994) (discussion of a federal civilian and a court-martial prosecution for the same or similar offense).

I have had cases, as a military defense counsel, where the accused was prosecuted after the state cases.  In each, the state was unable to get a conviction and so the military took over.  This will happen more because of sexual assault politics.  As a military defense counsel, I have challenged the process but have been beaten back because the case law, according to military cases, is clear—there is no double jeopardy problem.  But it seems clear that military defense counsel should continue to litigate double jeopardy in cases where there has been a state prosecution.  So, military appellate defense counsel should raise the issue citing a possibility of a change in the law.

Gamble v. United States, No. 17-646.  The Court granted the petition in this case.  Note that in this case the state and federal prosecutions were going on at the same time  The argument goes something like this:

“The separate-sovereigns exception to the Double Jeopardy Clause should be overruled. Indeed, the exception flunks every test of constitutional interpretation. It has no basis in the text of the Fifth Amendment. It is inconsistent with the Clause’s original meaning, which derived from a long common law tradition that explicitly extended to prosecutions by separate sovereigns. It is irreconcilable with the Clause’s driving purpose, which is to ensure finality by protecting individuals from the threat or reality of successive prosecutions. And it distorts foundational precepts of federalism, pursuant to which our system of dual sovereignty is supposed to protect individual liberty rather than take it away.”

  • Gamble was prosecuted and sentenced twice for the same crime in Alabama and federal court which lengthened his sentence.
  • Counsel characterize Lanza as a “manufactured” rule inconsistent with the text and original meaning of the Constitution and outdated because of the ever-expanding scope of federal law. 

 Contact us for a consultation if you have a military case with a possible double jeopardy problem.

And then we have Tyler v. United States, No. 17-5410.  The issue--Whether the Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.  The challenge asserts that the exception is not valid, that it conflicts with the original meaning of the clause, and that it is a doctrinal anachronism that was unjust when deciding and not justified today.  The petition argues:

  • Successive prosecutions under the dual sovereignty exception to the Double Jeopardy Clause are “an affront to human dignity, inconsistent with the spirit of [our] Bill of Rights."
  • Just last year, Justices Ginsburg and Thomas called for a “fresh examination” of the dual sovereignty exception “in an appropriate case.”
  • The current doctrine fails to serve the objective of the Double Jeopardy Clause, which is “to shield individuals from the harassment of multiple prosecutions for the same misconduct.”
  • This is the “future case” envisioned by several justices who called for a “fresh examination.”
  • The dual sovereignty exception conflicts with the original meaning of the Double Jeopardy Clause.
  • Tracing the history of the Double Jeopardy Clause from England in 1644 to America in 2017 confirms that the dual sovereignty exception is unfair in any century. The Framers did not create any exceptions to the Double Jeopardy Clause; this Court did.
  • The doctrine was developed in a prohibition era decision, United States v. Lanza, 260 U.S. 377 (1922). That decision rests on a faulty foundation and its doctrinal underpinnings have been removed in subsequent cases.
  • The federalization of crime and increasing cooperation among state and federal law enforcement have diminished the justifications for Lanza and magnified the risks to defendants.