From: mnemonic@eff.org (Mike Godwin)
Subject: Re: double jeopardy (facist LA police)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Tue, 18 Aug 1992 10:38:13 GMT

In article <1992Aug18.021822.27242@panix.com> lkk@panix.com (Larry Kolodney) writes:

>Well this is an entirely different issue than the one I was
>addressing.  Presumably each time the distributor mails obscene
>materials, its a seperate offense.

Actually, it could be one mailing, but with recipients in multiple
states or federal districts. Same conduct, but analyzed as sepearte
offenses.  The violation of Rodney King's civil rights is
considered *both* a separate offense and a prosecution by a separate
sovereign.

>  I agree that the law sucks, and I
>favor its repeal.  But the problem isn't double jeopardy, its
>censorship.  

I'd say that if a single mailing led to multiple and successive
prosecutions, it looks like double jeopardy *and* censorship. But that's
just me.

>A "district" is not a sovereign.  The Feds CANNOT retry you for the
>same act in a different district if you've already been acquitted.

Right. They have to find a way to call it a different act.

>What are you talking about?  The only way you could be prosecuted in
>two districts is if you committed two seperate illegal acts.

Or if you committed a single act (such as a single act of distribution
of sexually oriented materials) that can be analyzed as multiple, separate
acts.

>Who ever said anything about "bad apples?"  I just said "powerful
>prosecutors" good or bad.  The "seperate sovereigns" doctrine still
>limits any individual prosecutor to one bite at the apple, and insures
>a maximum of two prosecutions for any particular act.

Well, are you saying that the Double Jeopardy Clause *doesn't* apply
in the case of nonpowerful prosecutors? 

You seem to be saying here that the thrust of the clause is to prevent
*the same person* from prosecuting you twice for the same conduct. That
would be scant protection indeed. A defendant finds little protection
in the fact that the same *prosecutor* is barred from retrying him as
he goes through a subsequent prosecution for the same conduct.

>You're attacking your own straw man.  I never said this.

Well, you seemed to be saying something about "powerful prosecutors" who
abuse their authority. I'm saying the Double Jeopardy Clause applies
to all prosecutors, whether they abuse their authority or not.

>The federal "second chance" is justified by principles of federalism,
>not the "evil" of the act being prosecuted.

I'm sorry, but I distinguish between the formal justification for the
federal "second chance" and what real prosecutors really say to each
other, and to the world, about it. Nobody talks in terms of federalism;
everybody understands that the purpose of the second chance is not to let
the bad guys get away.

>>No. Failure to report income is truly separate conduct from bootlegging
>>and extortion.
>
>Failure to report income from illegal activies!!?!?  Give me a break.
>I suppose you think the Marijuana Tax Act is a revenue measure.

Read the Tax Code sometime. Failure to report *any* income, whether
illegal or not, is an offense. Me, I consider willful failure to report
income a different crime from bootlegging or racketeering. I'm sorry to
hear that you consider them to be the same crime.


--Mike



-- 
Mike Godwin,    |"If there is a bedrock principle underlying the First
mnemonic@eff.org| Amendment, it is that the government may not prohibit 
(617) 864-0665  | the expression of an idea simply because society finds 
EFF, Cambridge  | the idea itself offensive or disagreeable." --W. Brennan