When Double Jeopardy Isn't

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Lemrick Nelson, the man accused of stabbing Yankel Rosenbaum to death during the 1991 anti-Jewish riots in Crown Heights, Brooklyn, has adopted a dramatic new strategy to beat the rap in his third trial, now under way in federal court. This time, he admits he did it, but he denies that the attack had anything to do with Rosenbaum's religion.

Why should that matter? Because Nelson was acquitted of murdering Rosenbaum in state court, and now he's being tried in federal court for violating Rosenbaum's civil rights. That's not double jeopardy, you see, because the charge and venue are different. Rosenbaum's first conviction in federal court was overturned on appeal, so now the government is trying a third time.

As outrageous as it would be to see Nelson get away with murder, his legal trickery seems a fitting response to the sophistry that allows an acquitted man to be tried again for the same crime.

NEXT: Goldbug Variations

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  1. I have felt for some time now that the civil judgement against O.J Simpson was a case of double jeopardy. How can a person be civilly liable for a crime that they were found criminally innocent of? Though there is no jail term imposed, there is still a state enforced punishment; forfeiture of property to the “victim”. Setting aside the question of O.J’s guilt or innocence, his civil trial was unconstitutional. Justice may well have ben served on the individual, but not on the society.
    D. Paul Perkins

    “You cannot conquer a free man.
    The worst you can do is kill him.”
    Robert Heinlein

  2. I don’t consider a the civil penalty to be double jeopardy, but to place someone on criminal trial for the same crime in both state and federal court is absolutely double jeopardy, regardless of what the government says. If the Constitution applies to states in other matters, why not in this?

  3. The reason a person can constitionally be sued civilly for behavior arising from a crime for which they have been acquitted is that the burdens of proof are different; criminal is beyond a resonable doubt while civil is mere preponderance. A criminal case might not satisfy a jury beyond a reasonable doubt, yet the evidence might persuade a jury that the allegations are more likely true than not. This is also why you seldom see a civil action move before a criminal one is completed– if convicted in criminal court, legal principles would cause the civil trial to be much less complicated and the establishment of liability a foregone conclusion; the reverse is not necessarily true.

  4. Just to throw a thought out there on these “double jeopardy” issues: When the 5th Amendment was originally ratified, it, like the rest of the Bill of Rights, constrained only the actions of the national government. It is only well after the ratification of the 14th Amendment that the Supreme Court started (still controversially, for those who unlike me believe firmly in originalist jurisprudence) began “incorporating” the Bill of Rights through the vehicle that Amendment’s due process clause.
    Double jeopardy has been a thorny issue ever since, but the clause has never been read to prohibit two separate criminal prosecutions by *different sovereigns* for the same behavior. As for civil suits encompassing the same conduct, obtaining a monetary civil judgment in tort requires a different standard of proof and does not put anyone’s “life or limb” in jeopardy even once. When you think about it, there’s no reason you shouldn’t be able to sue a person for compensation for the injuries inflicted on you in a battery, while the state prosecutes him separately for criminal conduct as well.
    You might well think that it’s *unfair* to “give justice another try” when the federal government brings criminal charges for civil rights violations after a state has convicted or failed to convict a defendant for the same behavior under state criminal law–and the Justice Department generally agrees with you, reserving such successive prosecutions for extreme cases. But after all, the clause does talk of the “same offence,” not the same act; it’s an open question why a single series of acts can’t be two or more offences. In any case, the unfairness we acknowledge is not necessarily the same thing as unconstitutionality, and those who have posted, Jacob included, need to ground their arguments more firmly.

  5. For all the complaints I hear about “sophistry” and the supposed “spirit” of the double jeopardy rule, I have to wonder how many of them believe that a terrorist who was tried and acquitted by a Taliban court should be immune from prosecution here. The reason we have the double jeopardy rule is to prevent successive, largely frivolous and malicious, prosecutions brought by a single sovereign against an innocent person, not to secure a substative “right” of the guilty to get away with their crimes. Most crimes violate the laws of one jurisdiction only, but if you manage to violate the laws of two, oh well. Kill a federal agent standind on the border of AZ, CO, UT and NM, and you may end up getting tried five times. Too bad for you; shoulda thought of that before you did the deed.

    The notion that the Browns and the Goldmans should not have been able to sue O.J. is even sillier. Why on earth should they, as private parties, be bound by a judgment rendered in a crimal case? They were not parties to that case, they had no right to be represented by counsel, they had no right to call witnesses, and to top things off, the burden of proof was slanted heavily against them. The notion that no one should be bound by the judgment to which they were not a party is a matter of simple justice, and one that has been around at least as long as the double jeopardy rule, if not longer.

  6. Just a brief riposte: “The notion that no one should be bound by the judgment to which they were not a party is a matter of simple justice, and one that has been around at least as long as the double jeopardy rule, if not longer.” This is generally true in private law, with certain important exceptions. But notice that, in a sense, rules of law generated by common law courts or judicial review of statutes or constitutions bind third parties all the time. The judgment does not, but the effect of the rule is to decide prospective factually identical/similar cases. Xrlq is correct to note that the double jeopardy clause does not forbid civil suits for the same conduct for the reason that it is a controversy between private parties–although arguably the court that hears the case and enforces the laws of the sovereign is in a sense introducing state action into the mix (this position has some precedential support, but has been narrowly read to apply only to things like enforcement of racially restrictive covenants). As I noted above, however, there is no “jeopardy of life or limb” in a civil suit–no matter how many wrongful death suits could be brought against, say Zaccarias Moussaoui, even were he acquitted in his criminal trial, there would still only have been single jeopardy.

  7. Jacob, Nelson isn’t being “tried again for the same crime”. Murder is differant than a violation of civil rights. And, as Mona wrote; the standard of proof in a civil trial is preponderence of evidence, not proof beyond reasonable doubt.

    What I find most intriquing is that Nelson is now admitting that he killed Rosenbaum. Knowing that the murder case cannot be re-openned once it’s settled, I agree that Nelson’s lawyers are cleverly taking full advantage of the usual process described by Mona.

    But, Jacob, if that’s yer main beef, wake up man! The maggot is admitting murder (of which he was mistakenly aquitted)in a civil rights case (in which he will, I predict (!! yes, read it here first!) be convicted. Sometimes an emotionally ravaged and abused nervous breakdown candidate gets charged with Murder in the First — and gets aquitted because the charges were overstated.

    Why do I predict a conviction..(I hear myself asking??) Because the dumb fuck is too clever by half: admitting that he killed Rosenbaum — for which he was previously aquitted — while claiming that it had nada to do with his religeon nor ethnicity. The jurors will be plenty insulted by this ploy and respond appropriately.

    …not that a renegade jury has ever surprised me or anything…

  8. Actually, Xriq’s example about the Taliban is exactly the reason the dual sovereignty exception to double jeopardy exists. For a good hundred years or so after the Civil War, it was pretty much unheard of for a white person to go to jail for harming a black person. Juries were all white, and many white DAs would bring halfhearted cases against white defendents accused of crimes against blacks because they didn’t believe that raping a black girl, or killing an uppity sharecropper was really so bad. In the 60s, the federal government decided to flex the muscles of its new civil rights laws by prosecuting a band of KKK members who had been acquitted by an all white jury at the state level, despite strong evidence. The Supreme Court ruled that there is a strong enough national interest in seeing justice done that if the state cannot or will not protect citizens from criminals, the fed’s interest in doing so trumps the defendant’s interest in avoiding another trial.

    In addition, realize that the exception works both ways. Imagine if the feds had gotten their hands on Nelson first and convicted him of a civil rights violation. It would effectively let the guy off scott free for the crime of murder because he committed it against a black person, and he’s already been tried for the “black victim” part of it. It seems much more sensible to let the second trial go forward in that case, and there’s no reason to preclude the arrangement simply because the order is reversed.

  9. I have mixed feelings. Nobody wants to see a murderer get off. If a murderer also engaged in, say, kidnapping, we could obviously draw a distinction to justify two trials. We might even justify a second trial for second-degree murder rather than first degree (if the law required the jury to only consider a single charge specified by the prosecutor, rather than a range of possible charges. I’m not a lawyer, so I don’t know if that’s the case).

    But “violating civil rights” is an apt description for just about any crime committed against a person. I have the right to live, the right be free from violence, the right to not have my belongings stolen or vandalized, the right to decide whether I’ll have sex, etc. Those rights are the reasons why we ban murder, assault, theft, vanalism, and rape.

    There are, of course, some civil rights violations that don’t fit under the rubric of any other crime. Most of these involve government acts. I’m not aware of any specific offense called “Searching Without Warrant”. If a government agent should happen to commit such a crime against me, the best charge would be the catch-all “Violating Civil Rights.”

    However, as much as it pains me to say it, in any meaningful sense it is double jeopardy to try a person for murder and then for violations of civil rights. I won’t shed a single tear for a murderer who happens to get convicted of civil rights violations, but there is a reason why the Bill of Rights was written, and it’s best not to tinker with it. Redundant prosecutions should not be allowed.

  10. So far, the deference to principles of federalism and separation of powers have led the Supreme Court to conclude that one who is prosecuted by multiple sovereigns for the same act, defined as a criminal offense by different legislatures, is not “twice put in jeopardy.”

    If the courts worded it that way, they have resorted to sophistry where none was needed. If a person is tried separately by two sovereigns for a single crime (forget the “murder” vs. “civil rights” nonsense – the issue could just as easily arise between state murder vs. federal murder, or even murder under the laws of multiple states), then of course he has been “twice put in jeopardy.” The only question is whether there is anything wrong with that result. That, in turn, depends on whether you view the double jeopardy clause as a check un runaway government (as I do), or as a citizen’s substantive “right” to get away with his crimes under certain circumstances (as Jacob seems to).

  11. “If a person is tried separately by two sovereigns for a single crime (forget the “murder” vs. “civil rights” nonsense – the issue could just as easily arise between state murder vs. federal murder, or even murder under the laws of multiple states), then of course he has been “twice put in jeopardy.””
    Of course he has been twice put in jeopardy if he is criminally tried twice–this is almost a tautology. Twice “for the same offence” (something I should have added in my post) is a different matter, and the issue depends on who gets to define what is an offense–separation of powers principles say, generally, that legislatures get to. Federalism principles would say that a state gets to define offenses against the state, and Congress gets to define offenses against the United States. The question isn’t just what you think the dj clause is for, but what it actually forbids, taking into account the rest of the constitution and the interpretive issue of how to incorporate it against the states. I don’t think it is sophistry to examine the clause with these issues in mind.

  12. Thales saying that the bill of rights only constrains federal government is ridiculous. So your saying a state has the right to deny it’s inhabitants free speech and press etc. etc.. That’s just retarded.

  13. Amy: You raise a good example, but I thought the principle (er, in so far as there is “principle” in our government anymore) was that the Feds stepped in when the state had shown itself unwilling or unable to carry out justice, not simply because they didn’t like the verdict, or because they wanted to impose extra punishment. I don’t think anybody’s arguing that New York falls into the first set of cases.

    Spork: “Murder is differant (sic) than a violation of civil rights.” And how did Nelson violate Rosenbaum’s civil rights, other than by murdering him?

    I’m with Thoreau, ulimately: I think “violating civil rights” is a singularly lame fig leaf for the feds’ attempt to assert jurisdiction over everything. They couldn’t have legitimately argued that murder was inherently a federal matter; murder has always been a local matter (barring a few cases). But argue that an act violated someone’s rights as a US citizen and suddenly the same prosecution becomes OK? That just smells funny.

  14. As far as I’m concerned, if someone is murdered and the perpetrator is ordered to pay a sum of money that is probably substantially greater than he or she can even earn in a lifetime (it kind of falls back on that ‘what is a human life worth’ question) – say something in the millions of dollars for a person who is not rich like O.J. – then that is still a substantial punishment levied by the state for the same crime. Sure, the perp still gets to wander the streets (assuming he can keep enough money not to violate vagrancy laws) but being enforcibly broke for the rest of your life could be likened to a lifelong prison sentence.

    I agree that it is disheartening when someone gets away with murder, and it would be nice to have some other mechanism to get back at them, but the fact that we recognize it as a means of punishment means essentially that we’ve achieved a de facto double jeopardy judgement, regardless of the technicalities of juridiction or the distinction between civil and criminal. In the case of the lack of convictions for white criminals who have harmed blacks in the old south, or other extreme cases where perhaps the jury was biased, a mistrial can be declared by a higher court. When something with the first trial was done demonstrably incorrectly, a new trial can be had without it being considered double jeopardy. I don’t think anyone is arguing that this would apply to this case however.

  15. To Anonymous: Read my first post again–I said that *originally* the Bill of Rights only constrained the national government (a historical matter beyond dispute), and that since the 14th Amendment, most of the Bill has been interpreted to constrain the actions of the states as well. The point was (perhaps I didn’t make this very clear) that in interpreting the double jeopardy clause in light of the 14th Amendment, you face an issue of whether you want to allow the states and the national government (or, indeed, two or more different states, as shown in the murder at the 4 Corners example) to be considered as separate sovereigns for purposes of legislating criminal law, and thus whether the same act or series of acts can be multiple offenses depending on the prosecuting jurisdiction. (Incidentally, Jacob, you really refer to jurisdiction when you write “venue.”) It is a question of interpretation. So far, the deference to principles of federalism and separation of powers have led the Supreme Court to conclude that one who is prosecuted by multiple sovereigns for the same act, defined as a criminal offense by different legislatures, is not “twice put in jeopardy.” For a little introduction for non-lawyers, see http://www.lectlaw.com/def/d075.htm
    I certainly agree that the doctrine is messy and in some ways counterintuitive–but what would anyone substitute?
    As for the federal civil rights violation, this is not a “fig leaf,” at least not in theory. Criminal violation of civil rights is something the federal government has the power to legislate on in light of section 2 of the 13th Amendment (which has been read to apply not just to literal slavery or involuntary servitude, but also the “badges or incidents of slavery,” in other words, private racial or religious discrimination) as well as section 5 of the 14th Amendment.

  16. Jim, once there is an acquittal, regardless of jury improprieties, jeopardy attaches. A mistrial can only occur before verdict–for an appellate court to set aside an acquittal would indeed violate the double jeopardy provision.

  17. This is all legal mumbo-jumbo and it doesn’t matter one bit. Double Jeopardy occurs automatically when the (guilty) perp convicts him/herself on Judgment Day.

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