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.
This week, a Leon County judge enjoined the State from including proposed Amendment 6 from appearing on the ballot. There have already been a couple provisions stricken, and now the court has found a third violates the “truth in packaging” requirement the the description accurately inform the public of the contents and effect of the proposed amendment. As we discussed on the last one, there is a pattern apparent that the CRC decided to try to cram the amendments through by hiding the ball, as well as bundling multiple issues into several of the proposals. The courts have been unimpressed, as challengers are now 3 for 3 in their attempts to strike the amendments.
Amdendment 6 was problematic not just because it combined disparate subjects: victim’s rights, term limits for judges, and de novo review of administrative hearings. Amendment 6 was also flying under the banner of “victim’s rights”, (as it’s being pushed by a special interest group promoting ‘Marsy’s Law’), however, it was misleading because Florida already has a Victim’s Rights component to its Constitution, and this amendment would not only create additional victim’s rights, but it would likely infringe upon due process rights of the accused, as required under the federal Constitution. The court found multiple reasons that the title and summary of the proposal are incomplete or outright misleading, and has ordered that it not appear on the ballot.
The issue has been appealed, and it appears the Supreme Court of Florida will hear argument on it September 5, which I believe to be the same day they will hear argument on proposed Amendment 8.
I haven’t had much time to post lately, but a substantial Supreme Court ruling this week demands a post. The Court ruled, by an 8-1 margin, that police searches that take place in the driveway of a home also require a warrant. Essentially, the court ruled that the curtilage of a home, that is, the immediate area surrounding the home, has similar protection to the home itself. In this case out of Virginia, an officer suspected that a stolen motorcycle could have been been stolen, and took it upon himself to peek under the cover. The Court found that the search was illegal because the officer did not obtain a warrant first.
Ultimately, this may not prove to be the most influential ruling… how many searches take place in a home’s driveway? Will this extend to the parking spot of an apartment complex? (I think so.) This ruling is not a great surprise, as the Supreme Court in the last few years has been very clear on the Constitutional protections for privacy against searches, particularly in relation to the home. And this will not hamstring law enforcement too much: cases like this one would present plenty of evidence to obtain a warrant.
Steven Avery, whose case was documented on “Making a Murderer” had filed a motion for new trial, alleging new evidence that would support granting him a new trial. The trial court denied the motion without a hearing, indicating that Avery’s attorney Katherine Zellner, had not met the legal standard for that type of motion in Wisconsin. Currently, that ruling is being appealed, but it’s fairly early in the appellate process: Zellner has not filed her brief yet.
Brendan Dassey, the young cousin of Avery, is still fighting to get his verdict overturned. He had gone through the State appeals process, when he then got a positive ruling from a Federal judge, finding his confession was illegally obtained and dismissing the trial result. However, a Federal Appellate court overturned that ruling, reinstating his conviction. He is now petitioning to the U.S. Supreme Court. The SCOTUS only takes a relatively few cases each year, and Wisconsin will likely be filing a brief arguing that there is no issue that needs to be addressed by SCOTUS. If the Supreme Court does not hear the case, Dassey could end up filing for a new trial as Avery has done.
The procedure for Florida’s Death Penalty was found to be unconstitutional, despite efforts to rework it, until March of last year, when a procedure that meets Constitutional muster was approved and signed into law. But what to do with the cases that had been sentenced under the old procedure. Florida’s Supreme Court ended up splitting the baby, basing their decision on when the US Supreme Court issued their controlling decision in Ring v. Arizona back in 2002. The Florida Court decided that the rule would be applied retroactively to cases decided after the Ring decision, but that individuals sentenced before then are out of luck: even though the Court had already decided the procedure used to sentence them was unconstitutional.
All Rise! Rookie superstar Aaron Judge has taken New York by storm this season, and the Yankees created a section in the outfield for his fans, called the “Judge’s Chambers”. They have people dress up in black robes and powdered wigs, and they go nuts when he comes up to bat. It’s fun!
This week, Supreme Court Justice, and lifelong Yankee fan, Sonia Sotomayor took in a game and naturally, she sat in the Judge’s Chambers. Looks like she had a great time, too! Even though Judge has been slumping since he destroyed everyone at the Home Run Derby, the Yanks took one from the Sox.