Keep prosecuting until they get the result they want?

by Walter Olson on July 21, 2013

As I mentioned in my CNN piece on Friday, various voices are calling for the federal prosecution of George Zimmerman following his acquittal on state-court charges [commentary about that: Jonathan Adler, Jacob Sullum, Steve Chapman, Eugene Volokh; see also the update to my Friday post regarding the possibility of "hate crime" charges] In a letter to Attorney General Eric Holder, the American Civil Liberties Union (ACLU) takes the view that a federal prosecution would be improper double jeopardy, implicitly rebuking its own executive director, Anthony Romero, who had suggested otherwise in early comments to the press following the verdict [TalkLeft ("the organization came to its senses"), Politico, text of letter from Laura Murphy, director of ACLU Washington Office, PDF; see also David Bernstein]

As I noted in my CNN piece, the exception for “dual sovereignty” prosecutions arose in a 1959 Supreme Court case called Bartkus v. Illinois, decided 5-4, in which the dissenters were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan. Here are a few things that Hugo Black had to say in his dissent, joined by Douglas and Warren: “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,” one that did not disappear “even in the Dark Ages.” And “retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.” In short, “double prosecutions for the same offense” are “contrary to the spirit of our free country.” (& welcome Instapundit, InsiderOnline readers)

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The discomfort of principles | a public defender
07.22.13 at 12:54 pm

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1 Richard Nieporent 07.21.13 at 1:35 pm

Why bother with another trial? After all the result could be the same as before. Since our present administration does not believe that we are a country of law, why don’t they just hand Zimmerman off to the mob and be done with it. I hear the good reverend Al has a track record of inciting mobs to carry out “street justice”. It would get the result that Obama and Holder desire without having to risk losing in court again.

2 wfjag 07.21.13 at 5:27 pm

The most powerful nation in history is targeting a man whose crime is not being dark enough.

3 kimsch 07.21.13 at 10:37 pm

Where did any of these people stand on the Italian trials and retrials of Amanda Knox? They want another bite at the apple now.

4 Isabelle 07.22.13 at 8:22 am

I’ve spent a week debating people on this. They hew to the story line “he set out to get him a black boy” yet know no facts about the case. I’ve argued with LAWYERS about this who have lost all notion of causation when they insist “he shouldn’t have gotten out of his car.” The race baiters grabbed this story early on, took control of it, and no one has bothered to learn the facts. They just run around declaring “I support Trayvon” This years’ equivalent of “I have black friends.”

5 William Nuesslein 07.22.13 at 10:11 am

To supplement Isabelle’s comment, I heard Al Hunt of Bloomberg on the radio yesterday say that Martin would have been convicted if he had killed Zimmerman. “That’s right.” chimed in Margaret Carlson. How soon we forget OJ Simpson wheh he was acquited for stabbing Ron Goldman 47 times. The very young Goldman was innocently dropping off a pair of glasses.

Besides the use of tribalism, the cases share a ferocity of action by the black guys.

6 Rick Caird 07.22.13 at 10:28 am

I do think we need to reverse this pseudo double jeopardy. Given a single act, like Zimmerman and Martin, either the Feds try him or the state tries him, but not both. This idea that several governments can stack different charges for the same act, is horrible. It allows government to persecute rather than prosecute.

7 Isabelle 07.22.13 at 11:11 am

The rabble wants to outlaw profiling and apply it to George Zimmerman ex post facto. While we are at it, why don’t we go ahead and make common sense illegal. Outlaw profiling and you might as well put a fence around the whole planet and rename it prison earth.

8 criolle johnny 07.22.13 at 12:25 pm

In reply to Mr. Richard Nieporent:
“hand Zimmerman off to the mob and be done with it.”
That IS exactly what the High Priests (Jackson and Sharpton) have been advocating.
The problem is that “zimmerman” is the German word for “carpenter”.
About two thousand years ago, the high priests urged government to hand the carpenter to the mob and be done with it …
I’ve always wondered where they got their degrees!

9 A6 07.22.13 at 12:45 pm

Isabelle,

You haven’t heard? Common sense *is* illegal.

10 A6 07.22.13 at 12:46 pm

Also, how do you put a fence around a ball?

Excuse me–let me withdraw that question and apologize: that question violates the rule against common sense.

11 Isabelle 07.22.13 at 1:28 pm

It would be a cage, obviously. And if there really is intelligent life in this or any other universe, I’m pretty sure it/they would welcome it.

12 novaculus 07.22.13 at 2:09 pm

When seeking political advantage and revenge, abusing the legal process can serve both agendas. Multiple prosecutions keep the base engaged and enraged, and serves to punish those a jury has already found not guilty. The process is made the punishment.

13 the Elephant's Child 07.22.13 at 8:59 pm

Whipped up to a frenzy by race-baiting specialists like Al Sharpton, the mob wants a lynching. They have no personal knowledge of either the trial nor of lynchings; but they heard that sometime in the past lots of black people were unjustly lynched, and they want payback for past injustice because a black child was unjustly murdered by a white Hispanic, at least that’s what they heard.

It’s much easier to go for a simple romanticized story than to read accounts of the actual issues, follow the events in the case and struggle to understand the law.

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