From: Greg Broiles <gbroiles@netbox.com>
Date: Fri, 21 Feb 1997 00:47:14 -0800 (PST)
To: dthorn@gte.net
Subject: Double jeopardy, was Re: Constitution and a Right to Privacy
In-Reply-To: <199702191924.MAA11906@infowest.com>
Message-ID: <3.0.1.32.19970220233614.006e1594@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain


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At 07:23 AM 2/20/97 -0800, Dale Thorn wrote:

(Ok, no, this doesn't have shit to do with C-punks, but I figure this is
going to the flames list anyway. Sue me for being off-topic.)

>I understood clearly the (supposed) intent of the feds in retrying
>the Whites in the South who were beating up on Blacks and getting
>off with White juries - I just believe they would have served the
>people better by declaring mistrials or something instead of using
>the "dual sovereignty" BS, since a study of the Constitution and
>its preparatory papers shows the fathers clearly would have balked
>at this.

While I think that the "dual sovereigns" theory is BS, I don't see how
declaring a mistrial wouldn't run into more or less the same DJ problem.

(Sometimes a retrial after a mistrial has a DJ problem, sometimes not - the
core question is whose fault the mistrial was. If it was caused intentionally
by the prosecution, the DJ clause will bar a retrial; but if the mistake was
nobody's fault or the defense's fault, DJ does not bar a retrial.) 

But if the federal government just looked at state prosecutions which ended
in a way that the feds didn't agree with, and arbitrarily declared mistrials
and retried the defendant(s), we're back at the same double jeopardy problem
- - a person is being tried twice for the same act(s). (Also, after mistrial,
the retrial is generally held  in the same court, but with a different jury.
Such a mistrial wouldn't solve the "prejudiced local jury" or "prejudiced
judge" problem.) Calling the excuse for the second trial "dual sovereigns" or
"mistrial" or "miscarriage of justice" doesn't change the basic facts. 

But there is a real problem behind the "dual sovereign" excuse/doctrine, and
that is that the two sovereigns may in fact have different interests or
different motives - like the example you mentioned, where local Southern
juries were reluctant (or outright unwilling) to convict local white people
for crimes committed against black people. The state government thought that
its interests were best served by a racially discriminatory criminal justice
system, or by ignoring injustice and discrimination. The federal government
(at least some parts of it) thought otherwise, or found it expedient to look
like they thought otherwise. How can the federal government pursue its
interests, let the state pursue its interests, and preserve both a meaningful
system of federal rights and respect for federalism? 

I agree that the "dual sovereign" doctrine is problematic, but I can't
articulate a better way to organize things and address the federalism/federal
rights problem, either. (One approach is to define the problem away, by
making some or all crimes exclusively federal or exclusively state crimes;
the problem is, voters like "tough on crime" legislators, and seem to vote
them into both state and federal legislatures. Unfortunately, we're
(collectively) getting what we're asking for.)
 
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--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | 
http://www.io.com/~gbroiles | Export jobs, not crypto.
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