prosecution-for-same-crime-twiceThe recent conviction of Michael Dunn for murdering a man because of the loud music in his car would at first blush appear to violate Dunn’s protection against “Double Jeopardy.”

Before we can discuss this case, you must understand Double Jeopardy, which is covered in the Fifth Amendment to the U.S. Constitution. This Amendment provides that no person “shall be subject for the same offense to be twice put in jeopardy of life or limb.”

This is known as the “Double Jeopardy clause,” which supposedly protects all persons in the U.S. from being prosecuted twice for the same crime.

“Double Jeopardy” doesn’t always mean what you think it does

The U. S. Supreme Court has long held that the Double Jeopardy Clause does not prevent multiple prosecutions of the same act by both the state and the federal governments. For example, a defendant can be prosecuted for the act of possessing a firearm as a felon in state court and, win or lose, can then be prosecuted by the federal government for the same act.

While it seems unfair and contrary to the protection given us by the Double Jeopardy Clause, the Supreme Court has held that one sovereign government cannot bind another by its actions.

Thus, a state court acquittal, or a state prosecution resulting in a sentence viewed as too lenient by federal authorities, does not prevent federal authorities from prosecuting the same act in order to obtain a conviction or a harsher sentence.

In practice, this does not happen very often as the U.S. Department of Justice has an internal policy, the “Petite Policy,” not to prosecute an offense that has already been prosecuted in state court unless important federal interests were not vindicated by the state court result.

Double Jeopardy and the Michael Dunn murder case

Back to the recent conviction of Michael Dunn in Florida. In Dunn’s case the jury deadlocked on the murder charge in the first trial and the judge declared a mistrial.

Because no verdict was issued by the jury, the state could try him again without violating the Double Jeopardy clause of the Fifth Amendment. This is one of the exceptions to the Double Jeopardy Clause.

Double Jeopardy for Military Service Members

Another aspect of the Double Jeopardy issue is when a defendant is a military service member. The recent triple-murder prosecution of Timothy Hennis in North Carolina involved a state court conviction, followed by a successful appeal and a new trial at which the defendant was acquitted, and concluded with a successful military prosecution that has placed the defendant on death row. All three trials were for the same acts.

When representing a client charged with a crime that is subject to prosecution in both state and federal court, it is important for the defendant’s attorney to be well-versed in both federal and state criminal law and to work to avoid double prosecution.

Mark Foster

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