From: lkk@panix.com (Larry Kolodney)
Newsgroups: misc.legal
Subject: Re: double jeopardy (facist LA police)
Date: 23 Aug 92 04:50:31 GMT
Organization: PANIX Public Access Unix, NYC

In <1992Aug22.135949.6077@eff.org> mnemonic@eff.org (Mike Godwin) writes:

>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.

>>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.

I never said people would consider it "one murder."  I said people
would consider it a single act, movtivated by a single impulse.

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

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

>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.

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.

>Your notion of what is "analytically impossible" is mistaken,

Ah, yes, proof by assertion.

>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.

You're begging the question.  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.  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.

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

1) intentionally
2) mailing
3) material that is obscene by the community standards of the
recipient's community.

The elements of proof for this crime are different in every community
because you have to prove that the material was obscene in each
community.

Similarly, the elements of murder are

1) intentionally
2) and without justification
3) killing
4) a person

Each murder has different elements of proof because there are
different victims to prove were killed.

>>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.

That's because they don't understand the law properly.  Most people
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.


>>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.

Bullshit.  The U.S. Constitution was not enforced for black citizens
south of the Mason-Dixon line for 100 years after the civil war.  If
this does not undermine the Supremacy Clause, what does?

>>(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.

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.


>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.  


>>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.

Don't get condescending with me.  The law we are discussing explicitly
refers to conspiracies.  The only way the LA cops will be convicted is
if it can be shown they agreed beforehand to violate King's civil rights.

> 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.

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