From: mnemonic@eff.org (Mike Godwin)
Subject: Re: double jeopardy (facist LA police)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Fri, 21 Aug 1992 17:05:10 GMT

In article <1992Aug21.042116.4327@panix.com> lkk@panix.com (Larry Kolodney) writes:

>Please describe a single criminal act which could be prosecuted in two
>seperate districts.
>
>If you say, mailing 10,000 porno magazines all over the country, you
>are wrong.  Obscenity is determined by a jury applying local community
>standards, thus each time you mail a piece into a different "local
>community" its a seperate offence with a distinct factual predicate.

There are other acts that can be analyzed this way (read the mail-fraud
cases, for example), but I'll stick with the obscenity cases.

Pardon me for disagreeing with your analysis here. I think a single
mailing is a single act. I think most people agree with me, even though
the jurisprudential analysis concludes that different districts =
different acts. 

I think it is important to distinguish between the legal justification for
considering the acts separate and the commonsense feeling that the
defendant is being hit again and again for the same publication. As a
lawyer, I find it helpful to me to remember that "the law" and "justice,"
while perhaps coterminous, are not identical. It seems to me that the
interest protected by the Double Jeopardy Clause is a justice interest,
not a legal formalism. (That justice interest is the interest in
preventing even guilty parties from being tried twice for the same
conduct. The Framers assume in the Fifth Amendment that this justice
interest outweighs even that of added assurance that guilty parties will
be punished.)

As you may know, the Department of Justice under George Bush has sought to
put publishers of sexually oriented materials out of business through
successive criminal prosecutions in separate districts. Typically, the
chosen defendants have *won* the cases at trial or on appeal ... so long
as their money holds out. The prosecutors often *expect* to lose, but
since their real aim is to bankrupt the publisher or distributor, this
doesn't bother them.

This strikes me as violative of the justice interest protected by the
Double Jeopardy Clause. I'm saddened to hear that you don't think it does.

>>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.
>
>Obviously that's not true, or Congress would have created a
>comprehensive federal criminal code which mirrored that of the states.
>The purpose of Civil Rights Act prosecutions are to guard the uniquely
>federal interest in attacking conspiracies to violate civil rights.

Larry, I think you must have misread me. I'm aware of the theory
behind the Civil Rights Act offenses. Let me clarify: when "the bad
guys" can be characterized as having acted in way that violates someone's
civil rights, the Civil Rights Act offenses can be used to try the
defendant for the same conduct. Now that I have made explicit what I 
thought was clear in context, you can see that your comment about whether
Congress would have created a comprehensive federal code mirroring those
of the states is inapposite. I was referring to a subset of all "bad
guys."

When I talk to federal prosecutors and federal law-enforcement agents, as
I frequently do in my work, the discussion of Civil Rights Act violations
centers not on the issue of "separate offenses"--no one really believes
the offense was "separate" in anything other than a legal sense--but on
the fact that it provides tools that help ensure "the bad guys" won't get
away.




--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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