Friday, July 18, 2008

Double Jeopardy en Espanol

In the United States, the Fifth Amendment's Double Jeopardy Clause (incorporated against the States via the Fourteenth Amendment's Due Process Clause) has been interpreted to have the following two consequences (among others):

1) The prosecution cannot appeal an acquittal;


2) The prosecution of a defendant (whether it results in conviction or acquittal) by Jurisdiction A does not bar his subsequent trial for the same acts by Jurisdiction B, where A and B are "separate sovereigns." This rule was dramatically illustrated when the police officers who were acquitted on California state law charges of beating Rodney King were subsequently tried on federal charges. California and the U.S. government are separate sovereigns (as are different U.S. states, but not different local governments within a state).

Meanwhile, as dramatically illustrated by yesterday's rulings in connection with the Madrid bombings, Spain has the exact opposite set of rules: 1) Prosecutors can appeal an acquittal; but 2) the fact that a defendant (here Rabei Ousmane Sayed Ahmed, aka "Mohammed the Egyptian") has been convicted for the same conduct now charged by a different sovereign (here Italy) does bar his trial.

The juxtaposition of these rules does not, of course, mean that either system is necessarily superior. The prohibition on appealing an acquittal in the U.S. is no doubt strongly tied to our reliance on juries in criminal cases. It protects the jury's role as finder of fact and conscience of the community. Spain, using bench trials within an inquisitorial system (in a non-pejorative sense), attributes less significance to the conclusions of the trial adjudicator.

Likewise, the separate-sovereign rule is a tricky matter. There can be something very unfair about its application to permit essentially a second bite at the apple, especially when the first trial resulted in an acquittal. Yet doing away with the rule completely could prove problematic where the first prosecution is either incompetent or corrupt. Suppose that during the Civil Rights era, local prosecutors rushed to try the members of a racist lynch mob so as to get an acquittal, and thus foreclose the possibility of a trial on federal civil rights charges. The separate sovereign rule makes such a ruse unavailing.

More broadly, the juxtaposition of the U.S. and Spanish approaches to what we call double jeopardy shows the context-dependence of judgments about procedural fairness. There is a strong tendency to confuse what's familiar with what's best.

Posted by Mike Dorf


egarber said...

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

How does the Supreme Court determine what constitutes the "same offense"? Does it mean the same or a very similar law? Or does it center more on the individual's action itself -- i.e., you can only prosecute me once if I rob a bank, so pick your statute carefully?

As an example, take my bank robbery example, and suppose I allegedly kill somebody in process. Now suppose I'm acquitted for whatever reason on a murder charge. Can the feds come back 6 months later and indict me for say, larceny / theft? I'm thinking yes.

I should know this, but I don't. So I'll ask :)

And if "offense" means the same law, maybe that's one reason we have a separate sovereigns rule here. Otherwise, courts would have to spend a lot of time determining whether a state law really is the equivalent of what the feds say, etc.

Hamilton said...

Perhaps I am misunderstanding the issue, but it seems the Spanish law could result in a situation like this:
I am convicted in Finland for murder, but in Finland murder is only punished by a literal slap on the wrist (perhaps with a fish). Spain now cannot convict me of murder even if I killed a Spanish citizen on Spanish soil?
Or, like your civil rights case, if I get an innocent verdict in Finland (which is completely independent of my hefty bribe of the Judge), Spain can't touch me, even if my guilt is obvious or even admitted?

It seems to me that Spain should simply export folks like Rabei Ousmane Sayed Ahmed to the United States (to a place like Texas or Florida perhaps) in exchange for some euros.
And of course George Bush could have Spain take a few tries (I don't know how many appellate levels Spanish criminal courts have) to convict some of the Gitmo folks. I'm sure we could pay them in F-15s that we can't afford fuel for.

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