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Double Jeopardy

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

The basic rule is that you can be court-martialed even if a state court found you not guilty. You can be court-martialed for offenses even if you have been prosecuted in federal court. There are several cases from the Court of Appeals for the Armed Forces that explain that.

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.

  • 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characterize Lanza as a “manufactured” rule inconsistent with the text and original meaning of the Constitution and outdated because of the ever-expanding scope of federal law.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.

We recently had a success with defending a double jeopardy claim at the Navy-Marine Corps Court of Criminal Appeals. Our client had his court-martial charges dismissed because of prosecution problems. The Marine Corps decided to retry him. Rather than litigate the second case we immediately filed a Writ to stop the second trial. The court agreed with us that the second prosecution was barred by the Double Jeopardy Clause in the U. S. Constitution. As a result the client was allowed to leave active duty with an honorable discharge.

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.
The petition was denied. So, the Supreme Court is not friendly to claims of double jeopardy is one conclusion to be made.

Regardless you should still consult us as civilian military defense counsel if you believe you are being prosecuted at court-martial under the UCMJ in violation of the Double Jeopardy Clause.
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