I suspect most people don’t realize there is a key legal loophole that allows people to be prosecuted more than once for the same crime. It’s understandable that people would not realize this, as the Fifth Amendment pretty clearly states: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” It’s a principle handed down through the common law, and appears to date all the way back to the Roman Empire. However, U.S. courts have allowed people to be tried, and punished, for duplicate offenses if those offenses are prosecuted in different jurisdictions: State and Federal. That is, even if a state court has tried, convicted, and sentenced someone for a charge in state court, the federal government can also try, convict, and sentence them in federal court. The sentences can even run consecutively, that is, one after the other.
On Monday, the Supreme Court issued a decision in a case, Gamble v. United States, that could have reversed the long-standing exception to the bar on double jeopardy. Instead, a 7-2 majority upheld the double jeopardy exception. The majority opinion found that the separate laws are defined by different sovereigns: although “separate sovereigns” is a judicial construct that does not appear in the Constitution. Mark Joseph Stern at Slate points out that dissenting justices Ginsburg and Gorsuch cite founding father Alexander Hamilton, in the Federalist papers, argue that sovereignty derives from the people and that the federal and state governments are to be regarded as “ONE WHOLE”. So, the two-sovereignty theory fails the framer’s intent test, as well as failing to convince the court’s leading textualist in Gorsuch. The plain language of the Fifth Amendment does not seem to support that the “atom of sovereignty” can be split so as to place a person twice in jeopardy for the same offense.
This is not a change of law, the courts have long upheld the state/federal exception to the bar against double jeopardy. However, for those that have long thought the state of the law did not reflect the intent of the Constitution, this opinion represents a missed opportunity to close this loophole and protect this right of the people.
We’ve talked about the secretive Stingray devices several times on crimcourts, and I’ve even talked about them on local TV. Stingrays are devices that mimic cell phone towers and can allow law enforcement to secretly collect cell phone data. The problem is, without a warrant, they can be used to unconstitutionally invade people’s privacy and to collect overbroad types of data from innocent citizens. It’s a clear violation of the constitutional prohibition on unreasonable searches.
On the pair of shows of the fictional New York police precinct “Brooklyn 99” which aired last night, the officers of the 99th precinct discover the new NYPD police commissioner has started using a Stingray to illegally collect data. The good guys set up a sting operation to bust the commissioner and end the illegal data collection program- a Stingray-sting! Hijinks ensue, but I won’t spoil the outcome for those who haven’t seen it. Nonetheless, it’s impressive that a comedy show used a hot button topic as the basis for an episode.
The first step was often to have Singer cheat on the tests. It appears this would be accomplished in several steps: Singer and his cohorts, some of which are cooperating witnesses, would have the parents claim a learning difference that would allow their children more time and to take the test at a different location. Singer would use a testing location that he “controlled” to then improve the children’s performance on the test, getting higher scores and making the children more attractive to elite schools. The children would not even know about the adjusted tests, leaving them to believe they had just performed well.
There was a second approach that involved bribing the schools. In some instances, Singer’s connections would designate the students as recruits for college athletics teams to facilitate their admission. Singer also ran a charitable organization through which he would funnel the money to coaches, such as Yale women’s soccer coach Rudolph “Rudy” Meredith, who had coached there for more than 20 years. Nine coaches and sports administrators have been indicated, including those from schools such as Stanford, USC, Texas and Yale.
The operation involved more than two hundred FBI agents, multiple cooperating witnesses, and has ensnared rich and powerful people such as actresses Felicity Huffman & Lori Loughlin, as well as CEOs and prominent lawyers. Some payments were in the thousands, while others paid up to $6 million to get their children into competitive elite schools.
Criminal justice reform has been a growing topic of late, and has been garnering more and more support from both sides of the aisle. Recently, even President Trump has signaled his support for such reform. It makes sense from a lot of standpoints: more efficient justice, less recidivism and less expense, while reuniting families: especially those separated by excessively long prison sentences for non-violent offenses. The growing movement has finally gained enough steam that the Senate appears poised to vote on a justice-bill, albeit a ‘slimmed-down’ version, before the end of the year. This is a good thing, though as the name of the bill, the “First Step Act”, implies, it should be merely the beginning of positive reforms.
Bar President Michelle Suskauer
Florida also has a need for criminal justice reform. Florida has a very draconian sentencing structure, in many cases imposing decades-long mandatory minimum sentences on non-violent offenses that far exceed the federal sentences that are being reconsidered. Florida Bar President Michelle Suskauer, who has spent many years in the justice system as a defense attorney and is acutely aware of the issues has made a push for consideration of the issue to raise awareness. The Florida Bar recently held a Criminal Justice summit to discuss the issue (the Bar cannot take a position), and Suskauer wrote an informative update in an OpEd published in the News-Press this week, and elsewhere. You should definitely check out her more detailed article, here.
The U.S. National Highway Traffic Safety Administration shut down an experimiental student shuttle program that had gotten underway in the new town of Babcock Ranch, in southern Charlotte County, Florida. The town had been advertising the autonomous student shuttle, which picked up students and transported them to school one day per week. While Transdev, the company that operates the shuttle had gotten permission from NHTSA to utilize the shuttles for a demo project, using the project as a school bus requires substantially more oversight from regulators. And even though they are calling it a shuttle, it ferries multiple children to school, so it certainly qualifies as a school bus.
I guess the good news is, I have not heard any complaints about the shuttle experiment in Babcock Ranch, and more importantly, no indications of any injuries. Perhaps they can continue the autonomous shuttle project in the town, just not as a school shuttle until it complies with the safety regulations. They are trying a lot of new things in Babcock Ranch, ‘America’s First Solar Town’, and there are going to be hiccups and growing pains… so it’s probably not best to try it out on the kids.
An Oklahoma zookeeper, who ran a big-cat shelter and billed himself as “Joe Exotic“, has been indicted and arrested for attempted murder-for-hire for attempting to hire multiple hitmen to kill the CEO of a an animal sanctuary in Florida. Joe “Exotic” Maldanado-Passage, 55, who ran a tiger petting zoo in Oklahoma, had a years-long feud with Carole Baskin, the CEO of Tampa’s Big Cat Rescue, regarding the efforts of animal sanctuaries to effectively boycott Exotic’s travelling zoo for what it claimed were harsh treatment of young tigers. Exotic had retaliated, which led to Baskin suing him, and being awarded judgment against him in excess of $1 million dollars. Exotic has allegedly offered to pay two different people to murder Baskin, but authorities were able to foil his efforts. He has previously made threats to Baskin, and even broadcast them himself on Youtube. The case is in the Federal system, presumably due to the interstate issues of his scheme.
Exotic has garnered some notoriety for his ill-fated campaigns for President and Governor of Oklahoma. Take a few minutes to watch, it’s indescribable…
Attorney Steven Burch, who had about 44 cases pending, primarily in Charlotte County, has been suspended indefinitely by the Florida Bar. Burch was indicted on federal drug trafficking charges in 2016, but continued to practice until recently. He was incarcerated after new charges were added, and his bond was revoked for violation of pretrial release conditions. Burch had arranged for a client to send the drugs, allegedly to then try to cooperate with law enforcement to get out of his own DUI charge. He had his client arrange to ship heroin, which he then disclosed to law enforcement. Unbeknownst to him, his client’s wife recorded the arrangement, and Burch ended up going down. He entered a plea to conspiracy to distribute, and faces up to 20 years in prison on that charge.
I’m going to tag this “reverse entrapment”, as it wasn’t law enforcement that set a guy up… it was his own attorney. And this will almost certainly, hopefully, be the only time I use that tag! Though, it is kind of similar to the Easter case from California…