News From Across the Pond

With cause, Gideon likes to quote this passage from Justice White's* opinion for a unanimous court in Coffin v. United States.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1.

White relates that story as he's tracing the genesis and history of the presumption of innocence.  He goes on to cite Fortescue.

Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliæ, Amos' translation, Cambridge, 1825.

And then, of course.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem.

These are bedrock principles of Anglo-American jurisprudence. Their heritage predates the republic, predates Blackstone, predates even the Emperor Julian.**

Except, well, bedrock legal principles designed to protect the innocent have a way of turning into quicksand.  Oh, sure, our institutions pay verbal obeisance to the idea that it is more important that innocence be protected than that guilt be punished.  But for all you'll hear about reconciliation and forgiveness, and for all I imagine he'd deny it, in practice our system reflects the attitudes of Bill (hang-'em-high) Otis a whole lot more than it does the attitudes of Helen Prejean.  Consider that in poll after poll, some 60% or more of the population believes that some number of factually innocent people have been executed and that others will be but that some 60% or more of the population thinks we should have the death penalty anyway.

Another of those supposedly bedoock principles is explicitly mentioned in the Constitution (as amended).

No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.

That's the Double Jeopardy Clause of the Fifth Amendment.   It embodies, the Supreme Court tells us, three protections.

• A person can't be tried again for an offense after being found not guilty.
• A person can't be tried again for an offense after being found guilty.
• A person can't be punished for the same offense more than once.

All that seems clear enough.  Alas, it bears little relation to what happens day to day in our courts.  Hell, the same Supreme Court that regularly identifies those protections routinely tells us that this or that one doesn't apply because, well, it doesn't.

The simplest example is what they call the We Can Do Whatever We Want Dual Sovereignty Doctrine which says that the feds (or another state) can try and convict and punish you for a crime regardless of whether you were tried and acquitted or convicted and punished for the crime in state court.  But really there are a whole bunch of other circumstances in which a person can be tried more than once for the same crime.  Just ask Curtis Flowers who's on death row in Mississippi now following his sixth trial for the same offense (an offense, I should add, that he insists and has always insisted he did not commit).

Anyway, the point is that we have this institutional idea about how a system should work and about the importance of innocence that says the government only gets one try and really does have to provide proof beyond a reasonable doubt because the risk of some guilty person walking free is worth it to ensure that innocent people will not be convicted.  Of course, it doesn't work all that well as we know (if we're honest about it) that a hell of a lot of factually innocent people are convicted of crimes.*** And, sadly, we don't actually want it to work all that well.

I mean, really, stop people on the street and ask if they'd be OK with some child molester going free if it meant that a few innocent but accused child molesters would also go free.  (Of course, you'd have to get past the initial reaction that nobody who's accused is in fact innocent.)  Check with Nancy Grace.

Despite that, despite what they've done to Curtis Flowers, despite all the folks who actually did get tried twice or thrice or whatever even though the state didn't manage to prove them guilty and who did get punished multiple times for the same crime and who . . . .  Despite all that, we've got the limited but real protections of the Double Jeopardy Clause.  The key, the most solid protection of which, is that first one above, that if a person is found not guilty, he can't be tried again.  At least not of the same charges in the same jurisdiction.  The accused can appeal a guilty verdict.  The state can't appeal a not guilty.  

And there's more.  The state can't (this is theory more than practice, but still) introduce evidence that the accused is a bad person in order to convince the jury that he must have done whatever.  Prior bad acts (which is what they're called in the legal biz) are admissible for many purposes, but not to show that if she did it before, she's surely likely to have done it this time.

And if we didn't have those protections (however limited they really are), can you just imagine?

Harbinder Khatkar

Actually, you don't have to imagine.  Just look across the pond.  That's where you'll find Harbinder Khatkar who's doing life (or at least 14 years - don't ask me, I don't practice law over there).  From The Guardian.

A violent rapist has been jailed for life after a landmark legal ruling in which his original acquittal for the offence was quashed by the court of appeal.

Harbinder Khatkar, from Derby, has been ordered to serve at least 14 years after being convicted of offences committed in December 2011 and February 2013.

The 37-year-old attacked six women on 2 February this year - less than six weeks after a jury acquitted him of an earlier rape in which he forced his way into the victim's home.

Following Khatkar's arrest for the later offences, the CPS successfully sought permission from judges to retry him by arguing that his subsequent crimes were so similar they amounted to new and compelling evidence of guilt.

If it's so, Khatkar is a legitimately bad dude who's done a shitload of terrible things and continued to do them after he was acquitted.  But rather than try him for the new stuff (though I suppose they might have done that too), they just doubled down.

Speaking on the BBC Radio 4 Today programme, Alison Levitt QC, principal legal adviser at the CPS, stressed that the "exceptional power" to quash acquittals had been used sparingly since its introduction eight years ago.

Levitt said: "In 2005 the law was changed to allow what is called bad character evidence, which is evidence that somebody has done something so similar or of the same type of offence on another occasion.

"It's a very exceptional power.

"When something has gone wrong and the evidence is strong enough, as we said it was in this case, it is only right that we should use it."

You know, there's this whole idea the Republicans (and especially the Tea Partiers) emphasize that the government can't be trusted.  Except, of course, when it comes to prosecuting people.  Then we can trust them. Never to abuse the power.  And never to make mistakes.

If The Guardian story is right and they've tried this only rarely in Britain, well, good for them.  But we know what happens once a small breach occurs. Now that they see it works, they'll do it again.  And again.

And all those folks who say that we should never look at foreign law will be lining up.

Salivating.


-------------------

Edward Douglass White

*No, not Whizzer White.  Associate Justice Edward Douglass White.  The, er, distinguished looking dude on the right.





**You won't do better if you really want to trace it than to read Alexander Volokh's law review article, n Guilty Men. (H/t to Greenfield for pointing me to it a couple of years ago.)

***I'm not just talking about the ones doing life or death for murders and sex offenses, though there are plenty of those.  I'm talking about the ones who plead guilty because the deal is too good to take a chance on trial and the ones who plead guilty because they've already served more than the maximum they could get but they couldn't bond out because they were too poor and the ones who . . . .

If At Fifth You Don't Succeed - With Update

I've written before about the counter-intuitive protection against double jeopardy.  The protection is right there, in the Fifth Amendment.  (I've put it in boldface so it's easy to find.)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The way the public tends to think of the rule (and it is a rule), I think, is that you can't be tried twice for the same crime.  That's not true.  Really, really, really not true.  You can.  Twice and even thrice.

Here are the basics of what they can do.

• You can be tried for the same act by the state or local government and by the federal government or the military under what's known as the Dual Sovereign Doctrine.
• You can be tried for a second time if the verdict from the first time was reversed on appeal for any reason other than that there was not enough evidence to convict.
• You can be tried for a second time if the first trial ended in a mistrial that was not intentionally caused by the prosecution. 
• You can be tried a second time if the first trial ended in a hung jury.
• You can be tried a second time if you're in the state of Ohio and you can't convince the trial court you can't, because although double jeopardy is protection against a second trial, in Ohio, you have to have the second trial and lose before an appellate court can say that you shouldn't have had to hire another lawyer and go through the horrors of a second trial in the first place. (Yes, I know that's confusing.  So is the Ohio approach.  Confusing and stupid and wrong.  And locked in place by the Ohio Supreme Court, though sometimes you can go into federal court to prevent the state from trying you again.)

Here's how Chief Justice Rehnquist accounted for this sort of mess in United States v. Richardson (1984).

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.

Sure enough.  And as he points out, the particular non-application of the Double Jeopardy Clause to hung juries goes back to United States v. Perez in 1824.  For at least 186 years now, we've been pretending the Double Jeopardy Clause doesn't mean what it says.  And the reason, of course, is one we all know.  This time, Justice Stevens in Arizona v. Washington.

The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws. 

Let's take a deep breath and parse that for a moment.

The government's job in a criminal case is to convince the jury beyond a reasonable doubt that the defendant is guilty.  When the government fails to do that, the defendant is to be acquitted and discharged.  It may not try again.  When the jury does not unanimously agree that the government has proved guilt beyond a reasonable doubt, the government can try again because of "society's interest" in allowing the prosecutor to take another shot at it.

I can see Clarence Thomas now, clawing at the paper trying to get the rule changed to accord with the language of the Constitution.  And Scalia.  And all those folks who say the Constitution means precisely what it says, no more and no less.

Well, maybe less.

OK, the law is what it is.  And bizarre and wrong-headed though it be, we have to deal with it.  But might there be some limit?

Apparently, the answer is a resounding "No."

Case in point, from Doug Berman this morning, quoting a CNN report.

Curtis Flowers has stood before five juries in the past 13 years on capital murder charges, accused of killing four people in a Mississippi furniture store.  This week, prosecutors are hoping his sixth trial will be the last.

I'm with them.  Of course, I'm with Flowers in wishing the fifth time (or the fourth) would have been the last.

Flowers was convicted the first three times.  The first two times he was sentenced to die.  Those two convictions were reversed by the Mississippi Supreme Court because the prosecutors introduced improper and overly prejudicial evidence against Flowers.  The third conviction was reversed by the Mississippi Supreme Court because the prosecutor kicked blacks off the jury for being black.  The fourth and fifth trials ended with hung juries.

This time, the prosecutor won't be able to use the testimony of a pair of jailhouse snitches.  They'd testified that Flowers confessed to them.

The two later admitted to lying under promises of monetary reward from law enforcement.

Ooops.

Doug Evans, Flowers' personal Javert (he prosecuted Flowers the first five times and plans to do round six), says it's

a straightforward case of a disgruntled worker taking out his anger against his former employer.

Albert Einstein is frequently cited (though it seems nobody has pinned down where and when he might have said it) as the one who first said that insanity is doing the same thing over and over and expecting different results.  You know, that special kind of logic Rehnquist talked about in Richardson.

I don't have any idea whether Flowers committed the acts of which he's accused.  I'm damn well sure that it's time for the government to give up trying to prove it.  And no matter what the Supreme Court's been saying for 186 or more years, the Constitution is on my side.

MUCH BELATED UPDATE - Flowers was convicted and sentenced to die again at the 6th trial.  The jury was out for all of 30 minutes.  The lone black Evans did not manage to kick off the jury this time (unlike at trial 5) did not hold out.  The case is on appeal.