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Double Jeopardy and the Zimmerman Trial - Can He Be Tried All Over Again?

Derek Khanna
Wouldn't double jeopardy stop Zimmerman from being charged all over again?

The Double Jeopardy clause of the Fifth Amendment provides that no person can "be subject for the same offense to be twice put in jeopardy of life or limb." The concept of double jeopardy has an almost iconic quality and it's one of the few protections that many lay-persons are familiar with: once you are charged for a crime once and found innocent then the government can't try you again...or at least that's how it's supposed to work, right?

Then how can the DOJ charge George Zimmerman with a federal civil rights violation in relation to the same incident in which he was just found innocent of wrongdoing by a Florida jury?

Double jeopardy applies to both the federal government and to state governments (it has been "incorporated" to apply to state governments). But, as Professor Orin Kerr explains: "Despite its text, the Double Jeopardy clause has been interpreted by the Supreme Court to allow both the federal government and a state government to bring charges for the same conduct because they are separate sovereigns."

Thus Florida can't charge Zimmerman again, but, presumably, if there is an appropriate statute, the federal government could charge him, since it never charged Zimmerman to begin with.

But does this make sense?

To many legal scholars this precedent is wrongly decided and it's a matter of current legal controversy. I asked Georgetown Law Professor Randy Barnett for his perspective. Barnett was the architect of the Commerce Clause arguments against Obamacare and was once a former state-court criminal prosecutor in Chicago.

The original meaning of the double-jeopardy bar in the Fifth Amendment must be evaluated in context. At the Founding there was thought to be little, if any, overlap between federal and state laws governing individuals. In light of the modern expansion of federal power, 'twice put in jeopardy of life or limb' should be interpreted to mean what it says.

A case currently being appealed to the Supreme Court, Roach v. Missouri, challenges the idea that double jeopardy doesn't apply "across sovereigns." According to the petition for certiorari, the Double Jeopardy Clause was originally understood as "barr[ing] successive prosecutions, even by different sovereigns."

According to the petition:

Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of "dual sovereignty," which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.

In fact the petition goes further than merely claiming that successive prosecutions under different sovereigns are barred by the Double Jeopardy Clause. It also claims such prosecutions contravene a common law protection against double jeopardy. (Technically the petition is challenging the reverse of the Zimmerman situation, whether the state can charge someone who was found innocent of a crime at the Federal level, but it's nonetheless on point.)

This petition makes sense for a few reasons, since there are several different policy rationales for double jeopardy protection.

One rationale may be tied to the concept of jury nullification: the power of juries to nullify laws when deciding on verdicts. The Founding Fathers believed that juries should be judges of both the law itself and of whether the charged party was guilty. During the time of British occupation of the colonies, advocates of reform or revolution, the so-called "firebrands," were often prosecuted by the British, but when tried by a jury of their peers they were found innocent of charges for which they were clearly culpable. The juries were using their power as a jury to nullify laws being used to quell dissent in the colonies.

If the sovereign could simply charge someone all over again once found innocent, then the check of jury nullification would be much less effective. The Constitution and Bill of Rights was created with this in mind. (Jury nullification is discouraged today by other methods.)

The Founders also realized that in cases in which a jury found someone innocent according to the law, the prosecutor could simply charge them over again. The prosecutor could continue to charge and shop around for a jurisdiction and court where they could eventually find a conviction. This would completely undermine the concept of the American justice system which is designed to protect the innocent rather than ensure conviction of the guilty.

That foundational concept of American justice derived from Sir William Blackstone, the famous English jurist, who explained that "it is better that ten guilty persons escape than that one innocent suffer." This maxim was often repeated and amplified by our Founding Fathers. Benjamin Franklin famously expanded the maxim by saying, "it is better 100 guilty Persons should escape than that one innocent Person should suffer." In one of our nation's most famous criminal trials of the founding era, when John Adams defended the British soldiers charged with murder for their role in the Boston Massacre, Adams stated:

It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished... When innocence itself, is brought to the bar and condemned...the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.

Allowing the government to try individuals again for crimes they were found innocent of, in practice, some would argue, would nearly eviscerate the purpose of a jury system itself and effectively allow for prosecutors to be the judge and jury.

Another policy rationale for Double Jeopardy is the principle of legal certainty. Most charges include statutes of limitations, statutes that bar action after a certain amount of time has passed. This is done because over time evidence is lost, witnesses die, and memories fade, making a fair trial more difficult.

But statutes of limitations are also used to provide legal certainty, so that individuals are not left wondering if they will be charged for something that happened 20, 30, or 50 years ago. This is particularly true for relatively minor crimes, where society has determined that persons shouldn't wonder indefinitely whether they'll be charged. After a certain date the sovereign has simply ceded its capacity to charge the accused. While "there is no statute of limitations for federal crimes punishable by death" nor for other serious charges, most other federal crimes must be punished "within five years of the commitment of the offense," according to one overview of statutes of limitations.

Double jeopardy is designed to give ultimate legal certainty: if you were found innocent then you are free to go.

But, under current precedent it appears that an individual can be charged with murder at the state level, found innocent and walk outside the court room, only to be arrested by the FBI and charged under a federal murder statute, perhaps for crossing state lines. There is something distinctively unfair about such a situation that seems to contradict the purpose of double jeopardy.

So why does precedent seem to justify federal trials after state-level acquittals?

As Professor Randy Barnett notes above and the Roach v. Missouri petition explains, at the time of America's founding, double jeopardy between the state and federal government was likely unthinkable. From the Roach petition:

Courts have noted that the dual sovereignty doctrine was developed in an era when federal crimes were few in number and did not substantially overlap with state crimes, and that neither of these conditions exists today...With the growth of federal criminal laws, many offenses are now subject to both federal and state prosecution.

Most people have come to appreciate the federal government as having enormous police resources and capacities (here is a list of all the activities that the FBI investigates, just according to their website).

However, it wasn't always so.

In fact, until alcohol prohibition the federal government lacked a significant federal police force. When the federal government created agents to go after bootleggers and crime syndicates, it created a police force of G-Men, which would become the FBI. Since then the breadth of federal crimes has expanded to unprecedented proportions.

In the 18th century, there were very few federal crimes. Treason is one charge specifically written into the Constitution, along with specific requirements for conviction (two witnesses). Counterfeiting US currency became illegal in 1790, though it remained widespread through the 19th century.

Only after the assassination of President Kennedy in 1965 did assassinating the president become a federal charge. The assassins of President Lincoln and President Garfield were prosecuted by the federal government only because they took place in the District of Columbia. The assassin of President McKinley was charged in New York. Lee Harvey Oswald, accused assassin of President Kennedy, would likely have been tried for murder in Texas had he not been killed.

If individuals were arrested for counterfeiting or treason, there was no risk of double jeopardy between the state and federal government because these were federal charges only.

As Representative Samuel Livermore explained in the first Congress in 1789, the Double Jeopardy Clause codified "the universal practice in Great Britain, and in this country, that persons shall not be brought to a second trial for the same offense." As the federal government's reach has grown to unprecedented proportions, this growth shouldn't negate fundamental constitutional protections.

Double Jeopardy in Popular Media

The concept of being protected from being charged for the same crime again under double jeopardy has fascinated Hollywood - as can be seen from these two blockbuster films that incorporated double jeopardy into the plot (only one of which did so correctly):

1. Incorrect - Double Jeopardy (spoiler alert)

Ashley Judd: "I could shoot you in the middle of Mardi Gras, and they can't touch me." Nope, incorrect, nice try. Go back to law school.

2. Correct - Fracture (you'll have to watch the movie or can see the ending here). Thanks Anthony Hopkins and Ryan Gosling for getting this more accurate.

In Conclusion:

Regardless of the constitutional interpretation, Congress ought to introduce legislation to ensure that double jeopardy protections apply across sovereigns. There is no reason to wait for the courts to act. Congress can act today to ensure that individuals cannot be charged at the federal level for crimes they are found innocent of at the state level. This is a political winner looking for an enterprising Member of Congress...Ball is in your court Senator Rand Paul and Senator Ted Cruz. 

Derek Khanna (@DerekKhanna on Twitter and Facebook.com/derekkhanna) is the maverick former Republican staffer and civil liberties advocate whose op-eds on cell phone unlocking went viral in January. He is now a Yale Law Fellow, columnist, and policy expert, and leader in the campaign to legalize unlocking your cell. Read Derek Khanna's Congressional testimony on cell phone unlocking here

This piece first appeared here.

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