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  #1  
Old 01-17-2012, 10:01 PM
Lancia Lancia is offline
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Can someone explain how the double jeopardy laws work?

Today on NPR they mentioned the killing of Emmett Till, a black kid from Chicago who went to Money, Mississippi to visit some relatives. (This was 1955). While there he made the mistake of whistling at a white woman, which resulted in her husband torturing and killing young Mr. Till. The husband and his brother were charged with murder, but an all-white jury acquitted the men after only a few minutes of deliberation. Both men had claimed to be innocent.

A year or two later both admitted to a reporter for Look magazine that they had killed the kid. Both men lived more or less normal lives after that.

So my question is why were these two re-tried? As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial. If these two guys confessed, seems like that would be a pretty big piece of new evidence.

Why not try to prosecute them again? One if them lived until the mid-90's, seems that even if the failure to re-try these guys can be chalked up to Mississippi in the 1950's, at some point someone would open a case again based on their confession.

What am I missing?
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  #2  
Old 01-17-2012, 10:11 PM
zev_steinhardt zev_steinhardt is offline
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Quote:
Originally Posted by Lancia View Post
As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial.
Your mistake is here. A jury acquittal prevents retrial on just about all grounds. OJ Simpson could take out a full page advertisement tomorrow saying that he killed Nicole Simpson and Ron Goldman and there's nothing the state of California could do about it.

In other words, the appearance of new evidence will not allow a new trial.

The only times (IIUC) a new trial could follow a jury acquittal is if it is found that the trial was fixed (i.e. the defendant bribed the jury). In such a case, the defendant was never actually in jeopardy in the first place and, hence, double jeopardy does not apply.

Zev Steinhardt
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  #3  
Old 01-17-2012, 10:11 PM
Duckster Duckster is online now
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Originally Posted by Lancia View Post
As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial.
(Bolding mine.)

Quote:
Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same, or similar, charges following a legitimate acquittal or conviction.
(Bolding mine.) https://en.wikipedia.org/wiki/Double_jeopardy

Quote:
The Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substanially the same crime. See, e.g. United States v. Ursery, 518 US 267 (1996).
(Bolding mine.) http://www.law.cornell.edu/wex/double_jeopardy

Note the difference? It's the crime; not the evidence.

All, see http://legal-dictionary.thefreedicti...ouble+jeopardy
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  #4  
Old 01-17-2012, 10:12 PM
Rhythmdvl Rhythmdvl is offline
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Originally Posted by Lancia View Post
As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial.
It's not based on similarity of evidence, it's based on similarity of charges and jurisdiction.
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Old 01-17-2012, 11:38 PM
Polycarp Polycarp is offline
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Same jurisdiction (i.e., Federal and state are distinct) and same or interrelated set of criminal acts. You can't sequentially try Jones for shooting Smith with an illegally obtained pistol for murder, manslaughter, assault with intent to kill, assault with a deadly weapon, and (probably) possession of an illegal firearm. You can try him for the embezzlement he supposedly shot Smith to avoid him spilling the beans about. And if he crossed a state line for the specific purpose of committing the crime, the Federal courts could try him for that.
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  #6  
Old 01-18-2012, 12:03 AM
lawbuff lawbuff is offline
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The DJ Clause of the 5th Amendment was not made applicable to the states until 1969 so that state's DJ provision applied in 1955, and evidentially it did not forbid such.
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Old 01-18-2012, 12:04 AM
Chronos Chronos is offline
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Might the state of Illinois be able to claim jurisdiction, based on the victim being a resident of that state? And if they could claim jurisdiction, they'd still be able to re-try the murderers, right?
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  #8  
Old 01-18-2012, 12:07 AM
lawbuff lawbuff is offline
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Originally Posted by zev_steinhardt View Post
Your mistake is here. A jury acquittal prevents retrial on just about all grounds. OJ Simpson could take out a full page advertisement tomorrow saying that he killed Nicole Simpson and Ron Goldman and there's nothing the state of California could do about it.
The federal constitution does not however bar a subsequent charge of Conspiracy to commit murder. So if it came to light as new evidence OJ conspired to commit murder, even though he was not the actor, he can be tried for that, unless CA's DJ provision forbids it.
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Old 01-18-2012, 12:10 AM
lawbuff lawbuff is offline
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Originally Posted by Chronos View Post
Might the state of Illinois be able to claim jurisdiction, based on the victim being a resident of that state? And if they could claim jurisdiction, they'd still be able to re-try the murderers, right?
One way 2 states could assume "criminal law jurisdiction" is say the crime "commenced" in one state and was "completed" in another. Compare the SC case Heath v. Alabama. The person was tried in 2 states for the murder of the same person. The SC affirmed that right.
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Old 01-18-2012, 10:00 AM
Mama Zappa Mama Zappa is offline
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Originally Posted by Polycarp View Post
Same jurisdiction (i.e., Federal and state are distinct) and same or interrelated set of criminal acts. You can't sequentially try Jones for shooting Smith with an illegally obtained pistol for murder, manslaughter, assault with intent to kill, assault with a deadly weapon, and (probably) possession of an illegal firearm. You can try him for the embezzlement he supposedly shot Smith to avoid him spilling the beans about. And if he crossed a state line for the specific purpose of committing the crime, the Federal courts could try him for that.
Anyone remember the Rodney King trial? Where the police were acquitted of brutality in the beating, and that sparked riots in the LA area?

The policemen were later re-tried - somehow the government tried them on civil rights violations instead of regular police brutality. As incomprehensible as their initial acquittal was, I don't understand how the government could get away with essentially saying "whoops, that was a mess, better get 'em in jail SOMEHOW to satisfy the mob".

You said "can NOT try him sequentially" - if I get your meaning, you're saying that they can't try him for murder, and if that fails they can't nail him on the firearm possession charge in a later trial? I can get that they couldn't have him acquitted on murder, then slap him on manslaughter in a separate trial since murder and manslaughter are pretty much the same thing.
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Old 01-18-2012, 10:15 AM
CutterJohn CutterJohn is offline
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Originally Posted by Mama Zappa View Post
Anyone remember the Rodney King trial? Where the police were acquitted of brutality in the beating, and that sparked riots in the LA area?

The policemen were later re-tried - somehow the government tried them on civil rights violations instead of regular police brutality. As incomprehensible as their initial acquittal was, I don't understand how the government could get away with essentially saying "whoops, that was a mess, better get 'em in jail SOMEHOW to satisfy the mob".

You said "can NOT try him sequentially" - if I get your meaning, you're saying that they can't try him for murder, and if that fails they can't nail him on the firearm possession charge in a later trial? I can get that they couldn't have him acquitted on murder, then slap him on manslaughter in a separate trial since murder and manslaughter are pretty much the same thing.
I believe the first charge was state, and the second federal, which means double jeopardy wouldn't apply.
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Old 01-18-2012, 10:51 AM
friedo friedo is online now
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Quote:
Originally Posted by Mama Zappa View Post
Anyone remember the Rodney King trial? Where the police were acquitted of brutality in the beating, and that sparked riots in the LA area?

The policemen were later re-tried - somehow the government tried them on civil rights violations instead of regular police brutality. As incomprehensible as their initial acquittal was, I don't understand how the government could get away with essentially saying "whoops, that was a mess, better get 'em in jail SOMEHOW to satisfy the mob".

You said "can NOT try him sequentially" - if I get your meaning, you're saying that they can't try him for murder, and if that fails they can't nail him on the firearm possession charge in a later trial? I can get that they couldn't have him acquitted on murder, then slap him on manslaughter in a separate trial since murder and manslaughter are pretty much the same thing.
They were acquitted on state charges. They were subsequently tried by the federal government for violating the civil rights of Rodney King while acting in their capacity as law enforcement officers, which is a federal crime.
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  #13  
Old 01-18-2012, 11:02 AM
Lancia Lancia is offline
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Ok, so how does a re-trial/new trial happen? My knowledge of the law comes from Grisham novels and thats about it, but I've seen references to people who were convicted and then "seek a new trial". Wouldn't that be the same thing as double jeopardy?
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Old 01-18-2012, 11:07 AM
friedo friedo is online now
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Originally Posted by Lancia View Post
Ok, so how does a re-trial/new trial happen? My knowledge of the law comes from Grisham novels and thats about it, but I've seen references to people who were convicted and then "seek a new trial". Wouldn't that be the same thing as double jeopardy?
It's only double jeopardy if the state tries to seek a new trial after you've been acquitted. If you're already convicted, then a new trial doesn't put you in any more jeopardy.

Almost all of the time, a convicted person who wants to fight a conviction will do so by appealing to higher courts, relying on legal arguments about why the original trial was flawed in some way. In rare circumstances, such as severe prosecutorial misconduct, jury tampering, judge-bribing, etc., then a new trial may be granted.
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Old 01-18-2012, 11:09 AM
Jas09 Jas09 is online now
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Originally Posted by Lancia View Post
Ok, so how does a re-trial/new trial happen? My knowledge of the law comes from Grisham novels and thats about it, but I've seen references to people who were convicted and then "seek a new trial". Wouldn't that be the same thing as double jeopardy?
No, that's backwards. If you're convicted you can continue to appeal for a new trial (either citing new exculpatory evidence, or errors by the judge, or any number of things). It's only if you are acquitted that you can't be tried again in the same jurisdiction on the same charges.
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  #16  
Old 01-18-2012, 12:23 PM
md2000 md2000 is offline
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The moral of the story is - if the prosecution wants to find some grounds for a new trial on different charges, they can. There are so many laws, there must be something you violated, and the feds and the state can act pretty much independent of each other.

I'm not sure in what circumstances the "speedy trial" rule applies if at all in the states. Here in Canada, one constitutional right is to be charged within a reasonable time. The state cannot collect evidence for a crime and hold it over your head for the next two decades, when we need to teach you a lesson we'll charge you for that old crime you committed way back in your college days. Of course, if new evidence comes to light (we found the body 20 years later) then that may mean they have enough evidence now to lay charges, but they did not before.

The double jeopardy rule just means that the state better be sure it has all the evidence when it does charge you. They don't get to try again when new evidence appears. They don't get to keep trying over and over again until they find the right jury.

Of course, people provide false confessions all the time. If a white guy from the south is accused of murdering a black man and acquitted, he might find it a plus in those days in his "social circle" to boast that he did it. More likely, he knew he could not be re-tried so he told the truth.
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Old 01-18-2012, 01:11 PM
Northern Piper Northern Piper is online now
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Originally Posted by lawbuff View Post
The DJ Clause of the 5th Amendment was not made applicable to the states until 1969 so that state's DJ provision applied in 1955, and evidentially it did not forbid such.
Can you elaborate? As far as I can tell, it looks like s. 22 of the Mississippi Constitution would have barred it:

Quote:
SECTION 22.
No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.

SOURCES: 1817 art I 13; 1832 art I 13; 1869 art I 5.
It doesn't look like it's been amended since 1955?
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Old 01-18-2012, 01:58 PM
Bricker Bricker is offline
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Originally Posted by Lancia View Post
Today on NPR they mentioned the killing of Emmett Till, a black kid from Chicago who went to Money, Mississippi to visit some relatives. (This was 1955). While there he made the mistake of whistling at a white woman, which resulted in her husband torturing and killing young Mr. Till. The husband and his brother were charged with murder, but an all-white jury acquitted the men after only a few minutes of deliberation. Both men had claimed to be innocent.

A year or two later both admitted to a reporter for Look magazine that they had killed the kid. Both men lived more or less normal lives after that.

So my question is why were these two re-tried? As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial. If these two guys confessed, seems like that would be a pretty big piece of new evidence.

Why not try to prosecute them again? One if them lived until the mid-90's, seems that even if the failure to re-try these guys can be chalked up to Mississippi in the 1950's, at some point someone would open a case again based on their confession.

What am I missing?
1. They were not retried in state court because jeopardy attached to their first trial, and served as a subsequent bar to reprosecution, lawbuff's speculation notwithstanding.

2. They were not retried in a federal context because of the lack of federal ammunition: Till was killed in 1955, and the passage of the civil rights laws that were used to great effect against other offenders was still about ten years away. Roy Bryant and J. W. Milam, his self-confessed killers, suffered financial ruin after their inculpatory interview was published by Look magazine, but they couldn't be tried for a 1955 crime under a law passed in 1964. This is prohibited by the Ex Post Facto Clause.

3. For a general discussion of double jeopardy in the context of an admission to a crime following acquittal, see my Staff Report, "What happens if you confess to a crime after being found not guilty?"
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Old 01-18-2012, 02:12 PM
Bricker Bricker is offline
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The DJ Clause of the 5th Amendment was not made applicable to the states until 1969 so that state's DJ provision applied in 1955, and evidentially it did not forbid such.
Absolutely incorrect. See Burton v. State, 79 So. 2d 242, (Miss. 1955):

Quote:
Section 22 of the Mississippi Constitution provides that,

"No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution."

.
.
.

For the appellant to avail himself of a plea of former jeopardy in this case, it was necessary that he show that the offense for which he was being tried was the same in law and fact as the one for which he had already been tried.
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Old 01-19-2012, 11:30 AM
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Originally Posted by Bricker View Post
1. They were not retried in state court because jeopardy attached to their first trial, and served as a subsequent bar to reprosecution, lawbuff's speculation notwithstanding.

2. They were not retried in a federal context because of the lack of federal ammunition:
From the OP's words it appeared they were tried again in state court, he said nothing about a federal court trial.
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  #21  
Old 01-19-2012, 11:41 AM
lawbuff lawbuff is offline
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Originally Posted by lawbuff
The DJ Clause of the 5th Amendment was not made applicable to the states until 1969 so that state's DJ provision applied in 1955, and evidentially it did not forbid such.


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Originally Posted by Bricker View Post
Absolutely incorrect. See Burton v. State, 79 So. 2d 242, (Miss. 1955):

If you are refering to this part of my post:

Quote:
so that state's DJ provision applied in 1955, and evidentially it did not forbid such
As I stated above, I did not know a federal court retried the person, so my statement was based on that fact.
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  #22  
Old 01-19-2012, 11:44 AM
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Originally Posted by friedo View Post
They were acquitted on state charges. They were subsequently tried by the federal government for violating the civil rights of Rodney King while acting in their capacity as law enforcement officers, which is a federal crime.
United States Code Title 18 sec. 242, is the criminal civil rights violation statute under color of law. 42 USC 1983 is the Civil + remedy.
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  #23  
Old 01-19-2012, 11:55 AM
lawbuff lawbuff is offline
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Originally Posted by md2000 View Post

I'm not sure in what circumstances the "speedy trial" rule applies if at all in the states. Here in Canada, one constitutional right is to be charged within a reasonable time. The state cannot collect evidence for a crime and hold it over your head for the next two decades, when we need to teach you a lesson we'll charge you for that old crime you committed way back in your college days. Of course, if new evidence comes to light (we found the body 20 years later) then that may mean they have enough evidence now to lay charges, but they did not before.
States generally are more in specific tune with a speedy trial provision thatn the federal constitution will alllow.

For example my state, Ohio, we have by statute certain time frames. A Minor Misdemeanor must be prosecuted within 30 days. A Misdemeanor of the 4th degree within 60 days, etc.


Most crimes have statutes of limitations for prosecution, 2 being a total exception, Murder and Espionage/Treason. I do know from past research that the state of Kentucky has NO SOL on any Felony anymore, applicable after that passage.


The SOL is seperate from the commencement of a prosecution though.

In my state the SOL does not begin until the Corpus Delecti is discovered. IOW, the crime itself may have say a 6 year SOL, but that only concerns if the crime was known at the time.


Quote:
They don't get to keep trying over and over again until they find the right jury.
When a Jury is hung a retrial can take place, but the Due Process Clause of the 14th AM, to state trials, will limit the # of retrials, yes. As you say a Prosecutor simply can't keep retrying a defendant.
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  #24  
Old 01-19-2012, 12:02 PM
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Bricker, I see they were NOT retried in federal court, so disregard my post that thought that from your other post, my error.
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Old 01-19-2012, 12:10 PM
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Another "interesting" example of double jeopardy is the case of Paul Warner Powell. Powell was tried in 1999 for a home invasion in which he raped a pair of sisters and murdered the older. Virginia law allowed for the death penalty only in cases of "aggravated murder", i.e., the murder was committed in association with certain other crimes. Since there wasn't enough evidence that he had raped the older sister, he was sentenced to life in prison instead of to death. Believing that he was protected by double jeopardy, Powell wrote a letter to prosecutors, taunting them that he had got away with raping the older sister as well. That changed the crime, and he was retried and sentenced to death.

Last edited by MikeS; 01-19-2012 at 12:11 PM..
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Old 01-19-2012, 12:17 PM
lawbuff lawbuff is offline
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Originally Posted by MikeS View Post
Another "interesting" example of double jeopardy is the case of Paul Warner Powell. Powell was tried in 1999 for a home invasion in which he raped a pair of sisters and murdered the older. Virginia law allowed for the death penalty only in cases of "aggravated murder", i.e., the murder was committed in association with certain other crimes. Since there wasn't enough evidence that he had raped the older sister, he was sentenced to life in prison instead of to death. Believing that he was protected by double jeopardy, Powell wrote a letter to prosecutors, taunting them that he had got away with raping the older sister as well. That changed the crime, and he was retried and sentenced to death.

I would think that the priciple of law here is what is known as the Blockburger test, from the US SC case of the same name. You can try a person for a crime of X and Y when one has an "element" not present in the other.

A case some years ago in a midwest state was that a person was tried for 8 murders when only 4 were killed. Each crime had a specific element the other did not, say Murder, then murder with a deadly weapon, etc.

I think there could only be 4 convictions though, the state wanted to make sure one of the 8 stuck.
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Old 01-19-2012, 12:17 PM
Polycarp Polycarp is offline
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To summarize:

1. An acquittal is a bar to further prosecution for the same or substantively similar crime resulting from the same set of putative criminal conduc ny the same jurisdiction. It does not preclude prosecutions in different jurisdictions nor similar crimes happening in different places at different times. I.e., Henry's having been acquitted of taking an illegal bet on Tuesday under a gambling statute does not preclude his being charged with taking a different bet on Saturday.

2. Dismissal of a case may be with or without prejudice. Essentially prejudice amounts to a finding that jeopardy attached, and precludes furtyher prosecution.

Quote:
Depending on the country, a criminal proceeding which ends prematurely due to error, mistake, or misconduct, may end as being dismissed with prejudice or without prejudice. If the case ends without prejudice, the accused in the case (the defendant) may be retried. If the case ends with prejudice, the effect on the defendant (for the purpose of punishment) is the equivalent to a finding of not guilty and they cannot be retried.

In the United States, if there is a mistrial, or the case is overturned on appeal, generally this is without prejudice and (in the case of decision overturned on appeal) either all of the case is retried, or, if not all of the case is overturned, the parts that were overturned (like a sentencing hearing) are retried. If the case is dismissed because of prosecutorial misconduct, it will typically be dismissed with prejudice, which means that the defendant cannot be retried.

In general, the rule for whether or not a case is dismissed with or without prejudice depends on what condition the case is in and whether "jeopardy" has attached to the case. If jeopardy is attached to a case, a dismissal or a resolution is "with prejudice" and the case can never be litigated again. In the case of a trial by jury, jeopardy attaches when the jury is empaneled and a dismissal (for prosecutorial misconduct or harmful error) at that point must be with prejudice. In the case of a bench trial (trial by the judge only), jeopardy attaches when the first witness in the case is sworn.

If a criminal case is brought to trial and the defendant is acquitted, jeopardy is attached to the case and it can never be retried. If the defendant was convicted and his conviction is overturned, jeopardy is not attached because the defendant is considered to simply be in the same state they were before the case was tried.

If a person is brought to trial where they are charged with a particular crime and is convicted of a lesser offense, the conviction for a lesser offense is an acquittal of any higher-level offense (for example, a conviction for second-degree murder is an acquittal of first-degree murder). If the conviction is later overturned, the maximum the defendant can be retried for is the crime to which they were convicted; any higher charge is acquitted and thus is with prejudice. (From Wikipedia article on prejudice)
3. A conviction is a bar to a retrial for the same offense while the conviction remains in force. Convictions can however be vacated.


Regarding speedy trials, the courts have declined to nail down exactly what time period constitutes too long for the constitutional requirement of a speedy trial. A couple of points are however worth making. First, any time elapsed as a result of defense motions does not count. That is, you may not claim loss of a speedy trial by intentionally delaying your trial. Second, the courts have in general looked askance at delays beyond six to nine months attributable to the prosecution. Note that those numbers are pragmatic posteriori figures suggestive of what courts have held, and do not represent a quantification of the legal principle of what comprises a speedy trial. A court could well hold that a prosecution in a complex case taking up to a year to ensure all necessary scientific tests have been performed is not violating defendant's speedy trial rights; conversely, a prosecution stalling for a couple of months in hopes that non-extant evidence will turn up may well be pushing the court's patience under the speedy trial doctrine.
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Old 01-19-2012, 01:00 PM
Bricker Bricker is offline
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Bricker, I see they were NOT retried in federal court, so disregard my post that thought that from your other post, my error.
Correct -- they were not retried, period, in any judicial forum.

I think your confusion arose from this part of the OP:

Quote:
So my question is why were these two re-tried?
But the OP goes on to say:

Quote:
As I understand it, the double jeopardy laws prohibits the state from re-prosecuting someone based on the same evidence that was presented during the first trial. If these two guys confessed, seems like that would be a pretty big piece of new evidence.

Why not try to prosecute them again? One if them lived until the mid-90's, seems that even if the failure to re-try these guys can be chalked up to Mississippi in the 1950's, at some point someone would open a case again based on their confession.
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  #29  
Old 07-02-2012, 08:06 PM
tishakastar tishakastar is offline
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If a case that includes 1st degree attempted murder, 2nd and 3rd degree aggravated assault and 2nd degree burglary is dismissed WITH prejudice, can the prosecution turn around and file for a greater charge of 2 count 1st degree murder and use evidence/facts from the above case that was dismissed WITH prejudice to convict someone?
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Old 07-02-2012, 09:11 PM
Bricker Bricker is offline
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Originally Posted by tishakastar View Post
If a case that includes 1st degree attempted murder, 2nd and 3rd degree aggravated assault and 2nd degree burglary is dismissed WITH prejudice, can the prosecution turn around and file for a greater charge of 2 count 1st degree murder and use evidence/facts from the above case that was dismissed WITH prejudice to convict someone?
Maybe. But probably not.

By that I mean that we'd need a bit more detail. When a case is dismissed, the reasons behind the dismissal are important. Does the fact pattern now charged in the first degree murder prosecution rely upon the same acts that were alleged in the prior case? Your question simply says, "...use evidence/facts..." from the prior case. Were those facts that are now being used disputed in the first trial?

This is an important question. If the current first degree charge rests on identical facts (plus a death) then the state is probably not going to be able to prosecute the first degree murder.
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  #31  
Old 07-03-2012, 09:40 AM
robert_columbia robert_columbia is offline
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Originally Posted by Rhythmdvl View Post
It's not based on similarity of evidence, it's based on similarity of charges and jurisdiction.
And if you could retry based on "new evidence", it could lead police and prosecutors to withhold evidence or decline to seek it out hoping that they can "get another shot" at convicting the guy on the pretense of finding "another fingerprint", "paint chips that the lab didn't have the time to process".

e.g.

Cop 1: "There are fingerprints over here on the doorknob, and there might be some on the walls too."

Cop 2: "The fingerprints from the door are enough. Don't check the walls. If the guy gets acquitted, we'll come back and 'find' fingerprints on the walls and then we can try him all over again and maybe we'll get a better jury."
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