From: mnemonic@eff.org (Mike Godwin)
Subject: Re: double jeopardy (facist LA police)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Sun, 23 Aug 1992 12:28:27 GMT

In article <1992Aug23.045031.7330@panix.com> lkk@panix.com (Larry Kolodney) writes:
>In <1992Aug22.135949.6077@eff.org> mnemonic@eff.org (Mike Godwin) writes:
>
>I never said people would consider it "one murder."  I said people
>would consider it a single act, movtivated by a single impulse.

You may not be aware of this, but you've used "act" in different senses in
this discussion.

>Nevertheless, people would agree that its okay to prosecute the person
>who commits this single act for ten seperate offenses.

Because they'd consider it 10 separate murders, not one single murder.

>Similarly, mailing obscenity to 50 federal districts might be considered a
>single act, but its just as easily 50 offenses.

"Just as easily 50 offenses" is fine. Earlier, you'd said that it's
"analytically impossible" that doing this "might be considered a single
act."

>  Why?  Think of who
>the victim of mailing obscenity is, under the "community standards
>doctrine".  Its "the Community"!  Thus, each community is a distinct
>victim of the crime, just like each murder victim is a distinct
>victim.  If you don't think it makes any sense to think of communities
>as victims of mailing pornography, well, I agree, its a shitty law.
>But the law it is.

You keep repeating this, so I suppose you're under the impression that I
didn't understand you the first time. For the record: yes, I *do*
understand how each community can be understood to be "a distinct victim
of the crime." I understand the theory, Larry. 

>You still haven't stated how you could possibly enforce the "community
>standards" doctrine without allowing prosecutions in each district in
>which obscenity is mailed.

By limiting the feds to one bit of the apple for a given publication from
a given defendant. This would still allow the feds to forum-shop, but it
would bar them from tactically using multiple prosecutions to bankrupt
someone regardless of acquittals.

>>Your notion of what is "analytically impossible" is mistaken,
>
>Ah, yes, proof by assertion.

Well, you seem to have conceded this very point above, when you said:
"Similarly, mailing obscenity to 50 federal districts might be considered a
single act, but its just as easily 50 offenses."

But a careful reader would have observed that the sentence that you 
turn into a fragment here was not meant to be "proof by assertion." What
I said was that I wanted to address the more important issue (to me). 
(In any case, I would be very cautious about claiming that any legal theory
is "analytically impossible." We're not talking about mathematics here.)
And since this is a digression, this is the last I will say on the
subject.

>You're begging the question.

Not at all. Perhaps you don't understand what "begging the question"
means. See below.

>  You set up this bogus doctrine that a
>single act by right equals a single offense, and then you claim that
>the obscene mailing statute violates this by considering an act of
>mailing pornography multiple offenses.

Please cite any single posting in which I "set up this bogus doctrine."
I *set up no doctrine at all*. I'm beginning to think you have some kind
of reading-comprehension problem--under no circumstances did I purport
to be stating a doctrine, bogus or otherwise. I think you are so caught up
in reiterating the (well-understood) legal theory behind multiple
prosecutions of obscenity offenders that you *don't get what I'm saying*.

>  I gave you two disctinct
>examples of single acts that are intuitively and by social consensus
>multiple offenses, and you have not even seriously tried to
>distinguish them from your obscenity example.

Sure I did. I said they are distinct in the minds of laymen. They are. If
you don't believe me, you haven't been reading the non-lawyer postings in
this thread.

>Let me try to be more explicit.  The elements of the federal crime of
>sending obscentiy thru the mails are

Sigh. You still don't get it. I know what the elements are. I know what
the legal theory is. You still don't understand the point I was making.
You are under the absurd impression that I was arguing the existence of
some "bogus doctrine."

>>I think your analogy is poor. Most people consider multiple murders
>>separate crimes, while at the same time most people consider a single
>>publication (which may have been mailed multiple times) a single crime.
>
>That's because they don't understand the law properly.

Really? Gosh, it couldn't be that they have a sense of justice or
anything, could it? Their problem is simply that they haven't had it
*explained.* Sigh. I'm not quite so contemptuous of lay opinions on this
matter as you are.

>consider possession of Marijuana a single crime, but you seem to have
>not "double jeopardy" objection to a conviction for possession and for
>violation of the Marijuana Tax Act.

Only because I think tax offenses are separate offenses. Willful failure to
pay taxes is a crime whether or not the underlying profit-making conduct is
illegal.

>>I think the Supremacy Clause will easily survive any policy not to
>>prosecute for Civil Rights offenses after state cases have resulted in
>>acquittal. Unlike you, I don't think federal supremacy is quite so 
>>fragile.
>
>Bullshit.  The U.S. Constitution was not enforced for black citizens
>south of the Mason-Dixon line for 100 years after the civil war.

I'm sorry to have to point this out to you, but this is a non sequitur.
The indisputable failure of federal and state governments to enforce the
Constitutional rights of African American citizens is deplorable, yes, but
it says nothing about whether the Supremacy Clause is fragile.

>No, I admit that the federal law in question was the result of a
>political consensus that issues of race discrimination are of national
>concern.  The riots in NYC are just evidence to support that judgment.

With all due respect, I don't think the riots are evidence of anything
other than anger. They don't seem to be evidence of a legal principle.

>>What you fail to acknowledge is that the federal prosecutors *wouldn't*
>>have gone forward on the Civil Rights charges if the LA policemen had been
>>convicted. (They've said this.) This undercuts any claim that the Civil
>>Rights prosecutions are vindicating a separate federal interest.
>
>Why?  Hundreds of millions of federal crimes go unprosecuted each
>year.  

Hundreds of millions? I'll grant that most potential federal prosecutions
don't make it to trial or plea agreement. But hundreds of millions? I get
the National Institute of Justice mailings on federal crime statistics,
and haven't seen anything so far that supports this hyperbolic claim.

In any case, you miss the point, perhaps intentionally. It's not that the
feds fail to prosecute--it's that they would choose not to prosecute, even
after conducting an expensive investigation, if the LA police officers
were convicted. Since the state conviction (or absence of one) was a
deciding factor in the feds' decision, that undercuts any claim that the
feds were vindicating a *separate* interest. In their own minds, as
evidenced by their public statements, they were not.

>Don't get condescending with me.

I promise not to, if you promise to address the argument I am actually
making, instead of arguing what the current legal theory is. (I know
what it is.)

>> In any case, the notion that "the federal system collapses"
>>if the defendants aren't tried twice seems, well, a teensy bit
>>hyperbolic.
>
>Tell that to the guy who murdered Medgar Evers.

I'd be happy to tell him that the federal system doesn't collapse if
defendants aren't tried twice. Are you under the impression that the
defendant in the Medgar Evers Civil Rights prosecution believes that
the federal system is going to collapse if he's not prosecuted? I'm 
not sure you're being logical here.



--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
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