From: lkk@panix.com (Larry Kolodney)
Subject: Re: double jeopardy (facist LA police)
Date: Sat, 22 Aug 1992 03:47:26 GMT
Organization: PANIX Public Access Unix, NYC

In <1992Aug21.170510.26178@eff.org> mnemonic@eff.org (Mike Godwin) writes:


>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. 

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.  But it's the basis for (at least) ten distinct
offenses.  And it would not violate the double jeopardy clause to try
each murder individually, would it?

Or more to the point, suppose I mailed out 10,000 letter bombs to
people all over the country.  Murdering all of them.  A single act?  A
single offense.  I don't think so.

I maintain that the only thing offensive about multiple prosecutions
for mailing pornography is that its censorship in the first place.

If you accept the ideological justification for banning porno from the
mails, there's nothing wrong with prosecuting each offense seperately.

>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.

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."

>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.

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)?


>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."

But you still haven't come up with a good response to eck's
hypothetical.  Suppose the state prosecutor is incompetent, or
sympathetic to the defendants, and purposely blows the case.  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.

Here's another way to look at it.  A simple murder that takes place in
Los Angles is essentially of local concern.  If the state prosecutor (for
whatever reason) does not convict some murderer, the citizens of his
jurisdiction can vote him out.  I, living in NYC, don't have much of
an interest in the outcome.

On the other hand, if there is a conspiracy in LA to violate civil
rights based on race, that is of national concern.  Why?  Because
racial strife has threatened to (and succeeded in) tearing this
country apart on a number of occasions, LA being just the latest
example.  (Note that after the Rodney King verdict, people rioted in
NYC.  Need you any more evidence that there's a national interest
involved?)

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.

And of course, this isn't just an abstract hypothetical.  The reason
the Civil Rights Acts were enacted is precisely because the rights of
federal citizens were being over-ridden by state governments.

>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.

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?


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

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