The Fifth Amendment forbids it, but courts play double jeopardy

Leslie Alan Horvitz

Is double jeopardy an outmoded legal concept? `Only happens when there's a tremendous amount of publicity about the acquittal and there's pressure to get the right outcome,' says one legal scholar.

When it comes to sequels, the American judicial system is getting its money's worth. The past few years have produced O.J. II, Crown Heights II, Rodney King II (there was nearly a III), Bernard Goetz II and de la Beckwith III, the last the subject of a recent movie, Ghosts of Mississippi. In all of these trials, the defendants initially were acquitted in one venue, but convicted in another. That is, they were retried in different courts for the same crime -- a kind of double jeopardy.

How is this possible? The Bill of Rights is explicit about restrictions on the government's right to bring charges against an individual twice: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...."

The double-jeopardy clause offers protection from three distinct types of abuse: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. Though it might sound facetious, the federal government sometimes gets away with trying an acquitted defendant a second time for a simple reason: "There's a strong level of dissatisfaction with the first verdict," says Mark Kelman, a professor at Stanford Law School.

Crown Heights II, decided on Feb. 10, is a perfect example. The controversial case involved an Australian Jewish scholar, Yankel Rosenbaum, who was stabbed to death in 1991 during a night of mob violence in the Crown Heights section of Brooklyn, N.Y. Though the immediate cause of the rioting was sparked by a car accident that killed a 7-year-old black boy, tensions had been building for years between neighboring Hasidic and Caribbean communities. In 1992, a state jury composed mainly of African-Americans and Latinos found the defendant, 16-year-old Lemrick Nelson, not guilty.

The verdict provoked outrage in the Hasidic community. Under pressure by New York Sen. Republican Alfonse D'Amato, Attorney General Janet Reno grudgingly agreed to bring federal charges against Nelson along with a second man, Charles Price. A federal jury of two Jews, three whites, three blacks and four Hispanics found Nelson and his codefendant guilty. Nelson was sentenced to six to 20 years in jail. His defense team wasn't convinced that justice was served. "If every person were to be tried twice, the odds of them getting exonerated would be greatly diminished," said one of Nelson's lawyers.

"Both King II and Crown Heights II involved government prosecutors seeking criminal convictions against the same defendants for the same wrongful acts and subject to the same standard of proof -- beyond a reasonable doubt," says Tricia Lynn Smith, a student at Columbia Law School who has written extensively about double-jeopardy issues.

In theory, the second Crown Heights trial does not pose a problem of double jeopardy because two different sovereignties were involved: the state of New York and the federal government. And in theory, the trial met the standard of the so-called "elements test." Federal prosecutors had to show that Nelson intended to kill Rosenbaum because he was Jewish -- a violation of his constitutional rights -- and that Nelson's attack actually caused Rosenbaum's death, an issue exploited by defense lawyers in the first trial who suggested that Rosenbaum died as a result of negligence by the hospital in which he died.

"Nelson's first trial focused on the harm suffered by society because he killed Rosenbaum," says Smith. "The state jury found that he was not guilty of causing this harm. But the federal trial focused on harm suffered by society because Rosenbaum's civil rights were infringed. Here, the jury found that Nelson did bring about this harm."

Crown Heights is only the most recent case in which the Justice Department intervened after a verdict in a state trial provoked an outcry. In another celebrated reversal, the federal government successfully prosecuted four Los Angeles law-enforcement officers, all of whom were white, in the beating of Rodney King, who was black, after their California counterparts failed to win a conviction.

But the feds have no monopoly on second trials. If the political and social climate is right, state prosecutors try and try again. It took 30 years and three trials for Mississippi to convict Byron de la Beckwith for the 1963 slaying of civil-rights activist Medgar Evers.

Some analysts find the legal technicalities that allow such retrials troubling. "If you believe in principle you believe in principle, even if it hurts," says Yale Kamisar, a law professor at the University of Michigan. Adds Smith, "I doubt that Congress intended for federal civil-rights laws to be used as a way to get a case back into court through the side door and before the justice system for a second go-around, and to subject an already-acquitted defendant to further criminal prosecution for the same underlying wrongdoing."

Joseph Sanders, a sociology professor at the University of Houston, calls the standard of dual sovereignty "almost a fiction." And Randy Barrett, a law professor at Boston University, is skeptical of the elements test. "No-where in the Constitution is there any mention of elements," he tells Insight. "It's a way of getting around the double-jeopardy clause."

Indeed, while many legal experts express outrage at verdicts that seem to ignore overwhelming evidence of guilt, as in the trial of O.J. Simpson, they find dubious retrials equally abhorrent. "I just have a problem with people defending themselves until the government gets it right," says Barrett, a former state prosecutor in Chicago. "We knew we had to win the first time or the guy would walk."

The fact is, second trials allow prosecutors to learn from their colleagues' mistakes. In Crown Heights I, for instance, the police bungled the investigation: They failed to get the names of witnesses at the site of the stabbing, they didn't vouch the murder weapon for 36 hours and they interrogated Nelson without preserving his confession for trial. The judge also was faulted for his behavior during the trail and for his sloppy jury instructions. "An acquitted defendant should not have to give his adversaries a chance to shore up weak points in their case the second time around," says Kamisar.

Scholars agree that in cases of double jeopardy, a clear distinction needs to be made between criminal and civil cases. "Comparing criminal and civil cases is like apples and oranges," says Sanders. "All that's at stake in civil actions is money It's not the power of the state oppressing people."

Simpson and Bernard Goetz, a white man who shot and seriously wounded four black youths on a New York subway in 1987, both were acquitted in criminal trials and then found guilty in civil trials. The second time around, their accusers were victims or the victims' families, not the state. "The victim becomes the center of the attention, not the police," says George Fletcher, a law professor at Columbia University, "and the victim can have more control of the action by choosing the lawyer."

Few doubt that the verdict in O.J. II will make wrongful-death suits even more popular. "In essence, wrongful-death statutes allow family members and those close to the victims to vindicate the death of a loved one by forcing the person responsible for the death to literally `pay' the family for the loss," says Smith.

If civil prosecutions following a criminal action have been rare, it's because "most defendants are insolvent," adds Kelman. Goetz was saddled with a $43 million penalty, but he is nearly bankrupt. His accusers are unlikely to see a penny of the judgment.

Money, of course, is not always the issue. Civil trials are "about taking a second crack at someone so he can't enjoy his victory," says Kelman. And this smacks some as the definition of double jeopardy. "I'm not sure that Mr. Simpson feels any less brandished as a `killer' in the wake of a civil verdict than he would have if found guilty during the criminal trial," says Smith. "He is certainly not serving time in jail, but he is serving out a sentence of sorts as an American outcast."

Theodore J. Boutrous Jr., a lawyer for one of the defendants in the King case, points out that "King was allowed to bring a civil suit in California against Sgt. Stacy C. Koon after Mr. Koon had already been tried by California state and acquitted and then tried again by the federal government and convicted on charges that he failed to stop officers under his supervision from using excessive force in arresting Mr. King." After Koon had served a 30-month prison term, the jury in the civil case was asked -- but declined -- to punish him yet again by imposing punitive damages.

RELATED ARTICLE: Criminals Forfeit, State Profits

The majority of retrials initiated by the federal government are based on a civil-rights statute that was drafted in the Reconstruction era to pursue crimes -- primarily against freed slaves -- that Congress believed the states were likely to ignore. And it is these types of cases that give many legal experts pause.

The Civil Rights Division of the Department of Justice conducts about five dual prosecutions annually -- for a total of 49 cases during the last 14 years. Most involve racial violence, official misconduct and involuntary servitude.

"In many of the standard cases -- civil-rights cases in the 1960s and desegregation cases -- there are explicit reasons why the states were messing up prosecutions," says Mark Kelman, a professor of law at Stanford University. "There are substantive concerns in the federal system about state prosecutors being unduly sympathetic to local defendants and local political power."

In a recent example, the federal government brought charges against a former state magistrate in South Carolina who had sexually assaulted a client. In the state trial he was sentenced to 400 hours of public service and a $500 fine, although he could have faced 35 years in prison. Tried a second time in federal court, he was sentenced to 12 months in prison.

It is doubtful whether Congress will revisit the civil-rights legislation to buttress double-jeopardy protections, as scholars such as Joseph Sanders, a sociology professor at the University of Houston, would prefer. Certainly there is no move to do so at present. Nor are civil-rights prosecutions the only problematic cases. Under forfeiture statutes, the government has the right to seize money and property in proceedings that can have a tenuous connection with convictions in criminal cases against the same defendant.

The most notorious forfeiture cases deal with the assets of drug dealers, but the law applies to illegal gaming, prostitution and industry safety. Astonishingly, more than 100 federal forfeiture laws exist, according to Sandra Guerra, a law professor at the University of Houston. "If you are illegally gambling you can lose your vehicle. If you don't follow industry standards, you are subject to forfeiture."

In New York, for instance, the state attempted to seize a house in which investigators had found 6 ounces of marijuana and purchased another 7 grams for $45. A federal court called the forfeiture bordering on "aberrational."

"Civil forfeiture proceedings don't ask culpability," Guerra tells Insight. "They ask only whether property was used in relation to the drug offense." Assets seized can be out of proportion to the punishment for the crime and, in such cases, the defendant must prove innocence rather than the prosecutor establish guilt. Moreover, law-enforcement agencies often split the bounty, creating an incentive to go after small but rich fish rather than major dealers.

Until a few years ago, the Supreme Court seemed to be veering away from the government's position that civil forfeiture merely was redress and not an additional sanction. By 1996, federal forfeitures had fallen as much as 70 percent. In the last year, though, the high court had a change of heart. One recent case involved a woman who sought to repossess a car used by her husband for an assignation with a prostitute. The Supreme Court ruled against her. Says Guerra: "I prefer prosecutions to process criminal and civil forfeiture cases simultaneously-convict first and then decide size of forfeiture based on criminal penalty."

Redress or sanction: Ohio trooper with vehicles confiscated from criminals.

COPYRIGHT 1997 News World Communications, Inc.
COPYRIGHT 2008 Gale, Cengage Learning