Try, Try Again?

It is hard to imagine a satisfying explanation for what happened in the entryway of Amadou Diallo's Bronx apartment building a year ago. The four police officers who killed him say they panicked when he reached for his wallet, thinking it was a gun, and fired 41 shots (19 of which hit Diallo) out of fear for their lives.

Whether or not the jurors in the Diallo case fully accepted this version of events, they were not persuaded that a crime had been committed. On the face of it, their verdict is hard to accept. When all is said and done, the police killed an innocent, unarmed man whom they singled out for reasons that remain mysterious. "Whoops" doesn't quite cover it.

Even if the officers were not guilty of murder, many people thought the shooting amounted at least to criminally negligent homicide, another charge they faced. The widespread dismay at their acquittal on all counts is understandable.

So is the anger of poor and working-class blacks who are tired of being treated like suspects instead of citizens. As Bronx District Attorney Robert T. Johnson observed after the trial, "There is very good reason to believe that some doctor on Park Avenue would not have been shot reaching for his wallet."

Still, I cannot say for sure how I would have voted if I had been on the jury. "Two or three days earlier, I would never have expected that verdict," one juror told The New York Times. "It surprised me. We were charged by the judge and told that the prosecution has to prove its case or there was no case. Well, that made it different."

Under our system of justice, the determination of whether the prosecution has proved its case is for the jurors alone. And once they've made it, the government does not get to try again with a different, more agreeable jury.

Or does it? The U.S. Department of Justice is considering the possibility of bringing civil rights charges against the officers who shot Diallo, just as it did with the Los Angeles cops who were acquitted in state court after beating Rodney King.

A second prosecution of this sort is not considered double jeopardy, forbidden by the Fifth Amendment, because of the "dual sovereignty" doctrine. "Every citizen of the United States is also a citizen of a State or territory," the U.S. Supreme Court observed in 1852. "He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either."

When someone is convicted under state and federal law for the same act, the Court declared, "it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he committed two offences, for each of which he is justly punishable." Although the Court did not actually use this rationale to uphold a conviction until 1922, it is generally treated as ancient and axiomatic.

But as Justice Hugo Black had the courage to point out in a pair of 1959 dissents, the dual sovereignty doctrine is a crock. "The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State," he wrote. "Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.

"If double punishment is what is feared," Black continued, "it hurts no less for two 'Sovereigns' to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, than when one of those 'Sovereigns' proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct."

Black allowed that, in the event of "sham trial," where the defendant was never really in "jeopardy" to begin with, a second prosecution might be justified. But the people who are clamoring for a federal indictment in the Diallo case do not claim the process that acquitted the four officers was corrupt. They simply do not like the result.

Neither do I. But I worry about unrestrained prosecutors as well as out-of-control cops.