From: mnemonic@eff.org (Mike Godwin)
Subject: Re: double jeopardy (facist LA police)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Sat, 22 Aug 1992 13:59:49 GMT

In article <1992Aug22.034726.8126@panix.com> lkk@panix.com (Larry Kolodney) writes:

>Suppose I take a machine gun, and in a single sweep, I mow down 10
>pedestrians walking down the street.

I think that when you reach for this kind of analogy, it shows that
you hope to reach a certain conclusion.

>Most people would consider that
>a single act.

On the contrary, most people would consider that 10 murders, assuming that
the victims all died. I think you'd find it very hard, Larry, to find
anyone who considered it one murder.

>So you tell me, how do you enforce a "community standards" obscenity
>jurisprudence yet prevent prosecutions of the same offender in
>seperate jurisdictions? Its analytically impossible. The problem is
>that the crime of sending obscenity through the mails should be void
>for vagueness.  Its impossible to know with any certainty (until
>you've been convicted) that you've committed the offense.  The problem
>is "community standards," not "double jeopardy."

As I've said before, I don't see how the censorship issue excludes the
double-jeopardy issue. It seems like both issues are present to me.

Your notion of what is "analytically impossible" is mistaken, I think,
but more importantly it misses the point: as I stated before, when 
I say that these multiple prosecutions violate the interest protected
by the Double Jeopardy Clause, I'm not relying on legal analysis. I'm
relying on social consensus.

>Its a bad law.  That's the problem.  Or do you think the letter bomb
>mailer also gets off after one trial (for a single murder)?

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.

>But you still haven't come up with a good response to eck's
>hypothetical.

I accept that you don't think my response is good. Life is full of these
little tragedies.

>  Suppose the state prosecutor is incompetent, or
>sympathetic to the defendants, and purposely blows the case.

The Double Jeopardy Clause does not have an exception for incompetent
prosecutors.

>If, as I
>claim, there are real and independent federal interests to be
>vindicated, this places federal law enforcement at the mercy of the
>state, and undermines the supremacy clause of the Constitution.

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.

>(Note that after the Rodney King verdict, people rioted in
>NYC.  Need you any more evidence that there's a national interest
>involved?)

Yes. The notion that riots prove a separate federal interest is
transcendentally fallacious. You more or less admit here that the
second trial is politically motivated--a response to the political
dissatisfaction of a segment of the American population.

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.

>Since  preventing civil rights conspiracies *IS* of national
>concern, the national government *must* have a chance to vindicate
>that interest, or the federal system collapses.

You seem to be using "conspiracy" in a way it's not normally used in
criminal law. In any case, the notion that "the federal system collapses"
if the defendants aren't tried twice seems, well, a teensy bit
hyperbolic.

>I don't think that the subjective feelings of prosecutors is germane
>here.  Most prosectors are probably in it because they like exercising
>the power that comes with the job, or because of some manichean moral
>fantasy.  Does that mean that the laws they enforce are all just
>rationalizations for their personal power trips?

No. But I think the prosecutors have a pretty realistic view of the actual
use and function of subsequent Civil-Rights-offense trials.



--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