From: lkk@panix.com (Larry Kolodney)
Subject: Re: double jeopardy (facist LA police)
Date: Tue, 18 Aug 1992 02:18:22 GMT
Organization: PANIX Public Access Unix, NYC

In <1992Aug17.153015.16314@eff.org> mnemonic@eff.org (Mike Godwin) writes:

>In article <1992Aug17.041324.15863@panix.com> lkk@panix.com (Larry Kolodney) writes:

>>Even if you accept the "seperate sovereigns" doctrine, this still only
>>gives the government two chances to convict.  Where does "again and
>>again" come from.

>From literary license? Well, if you don't buy that, try this: there are
>more than jurisdictions one can choose. For example, if you're the feds
>and you want to prosecute a distributor of sexually oriented materials,
>you can prosecute the the distributor in every federal district in which
>the distribution took place, and you can do one prosecution after another
>until you either win a conviction or put the defendant out of business.

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

>I can imagine a scenario in which the defendant's alleged violation of
>victims' civil rights occurred in more than one federal district.

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

>>the only way for the same sovereign to have multiple prosecutions
>>(barring a mistrial) is if the action in question genuinely involves
>>more than one substantive offense AND <if I remember correctly> there
>>new evidence is discovered which warrants prosecuting the second
>>offense after the first acquittal.  

>That's a Boolean AND, by the way. New evidence in itself is not enough.

Right.


>>I'm not so sure it feels like double jeopardy.  The point of the
>>double jeopardy clause (in my mind) is to prevent the harrasment of
>>unfavored individuals by powerful prosecutors.

>Sigh. That is surely one of its points. But recall that "powerful
>prosecutors" may in fact be well-meaning, principled individuals.

I agree.  And racist cops are disfavored by our <elite> society.

>What you're saying here is that the Double Jeopardy Clause is
designed to bar actions by bad apples;

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.

>>Giving the Feds a
>>chance to intervene where civil rights have been violated doesn't
>>appear to be an abuse the kind of which the jeopardy clause is meant
>>to prevent.

>It seems so to me. If you don't think the Double Jeopardy Clause was
>aimed at well-meaning prosecutors as well as corrupt ones, you don't
>understand the thrust of the Bill of Rights:

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


 We can *always* justify
>a second, or third, or fourth prosecution when we decide that a particular
>defendant is just too evil to be allowed to be acquitted.

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

>>Do you feel the same way about Al Capone being convicted for violating
>>the section of the IRS code which requires reporting income from
>>criminal activities?  

>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.

-- 
larry kolodney:(lkk@panix.com) 
_(*#&)#*&%)@(*^%_!*&%^!)*&#+!*&$+!?&%+!*&^_)*&#%)*&^%#+&
The past is not dead, it's not even past.   - Wm. Faulkner

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