You’ve been watching Law & Order, haven’t you ?
They took this issue up when Angie Harmon was the ADA, although I’m not sure.
In that episode, the culprits get away with it.
No, double jeopardy applies to any criminal offense, capital or otherwise. They can’t keep trying you over and over for shoplifting until they get a conviction.
Also, not all murder is capital murder. In Texas only certain circumstances merit capital murder. Other intentional homicides not in those circumstances are either murder or manslaughter.
[nitpick] Actually I believe that DNA can prove innocence with a lot more certainty than it can prove guilt. After all if the suspects DNA doesn’t match crime scene DNA then the that person couldn’t have left the DNA.
On the other hand, if the DNA does match it can only be inferred that that person is one of X number who could have left DNA at the crime scene. There is a high probability that he or she did leave it because it is unlikely that another person with that same DNA match would also be connected with the crime, but it isn’t the claimed “100% proof.”[/nitpick]
Actually hadn’t seen the Law and Order episode.
Got the idea from looking at actual capital cases. Especially in states that don’t have “non-triggerman” liability (but even in states that do), it’s very common for multiple defendants to be implicated in a course of events that leads to someone’s death, often with the spectre of two or more defendants facing possible capital charges and (because they can’t usually claim they had nothing at all to do with it) trying to blur the circumstances as to who planned the deal, or pulled the trigger (usually, simply pointing the finger at the other guy who was on the scene). Which in turn sometimes creates the possibility of someone doing the flip version, and trying to muddy the waters to aid his co-criminal. Never actually saw the case in which they took it to the extreme I suggested in my post, but it’s not so much of a stretch.
Note I’m not touching the “same transaction or occurrence quagmire,” nor opining on the (fact-specific) issue of whether Frank and/or Joe have conspiracy liability; the point is, if the basic ploy works, either or both may serve some lesser sentence for other crimes, but neither is going to the chair for first degree murder.
It’s the prosecution’s job to prevent things like this from happening. Before Joe took the stand, the DA would check out his alibi - if it could be proven he was not at the scene of the crime at the time, Joe never testifies. Also, if the judge decided Joe was not credible, he might not allow Joe in front of the jury.
tjblack, in the US, double jeopardy applies to ALL crimes, not just capital ones! With regard to katie1341’s comments, a better example might be as follows. A man commits armed robbery with a gun and shoots a convenience store clerk to death. He is charged with capital murder only, but found not guilty. After being acquitted of murder, the DA cannot choose to go back and try him for armed robbery.
I won’t comment on the OP, I think it’s been answered. 
tjblack - that is absolutely wrong. Double jeopardy may be raised as a defense to a speeding charge, if you wish.
katie1341 - fair enough. But just out of curiosity, what cases might you cite in your motion? I’ve taken a more thorough look at Georgia law - no substitute, I freely concede, for being licensed to practice in Georgia - and I can’t find anything that would help you. In Jones v. State, 252 Ga. App. 332 (2001), for example, a credit card is used twice within a short period of time after it’s stolen; the Court of Appeals said:
Frankly, had this been the example, I would have more readily agreed that it was a single transaction - there is an indentifiable nexus in cause, time, and use between the two crimes. Although it’s dicta - the Court goes on to say that the two are sufficiently linked to support a RICO conviction - they are also fairly clear in saying that the two are not the same transaction, and it seems clear to me that if they were resolving an OCGA § 1-6-7 issue, they would have not found joinder necessary.
As I say, if you have any counter-examples, I’m all ears (or eyes, as the case may be).
- Rick
From Amendment V of the U.S. Constitution:
A person is not put in jeopardy of life or limb when tried for shoplifting or possession of cocaine.
Granted, different states may have their own laws, but when people talk about double jeopardy, they are generally refering to the fifth amendment.
{b}Bricker,** I freely admit that I have not tried to find any caselaw. I pulled an example out of my, er, hat, and I concede that it’s not a good one. How’s this: A convicted felon shoplifts a gun. In GA, it’s illegal to posses a firearm. So, he’s guilty of both shoplifting and possession of firearm by a convicted felon. They have to be prosecuted together.
The fifth amendment doesn’t just apply to the federal government. The exact same double jeopardy protection applies to the states as well, and protects in all criminal prosecutions. See the case of * Benton v. Maryland*, 395 U.S. 784 (1969).
Pravnik, the instant case runs the other way. While the states must extend the Fifth amendment protections to their citizens, the states can (and do) provide protection above and beyond what the Constitution provides, and such actions in no way bind other states or the federal government.
I think we’ve crossed wires, Nametag. I was responding to tjblack’s assertion that fifth amendment double jeopardy protection didn’t apply to state prosecutions or to non-capital crimes, not the “same transaction” discussion. Sorry, I should have quoted.
Please stop digging this hole, tjblack; you’re wrong.
If we were back in 1789 and interpreting the Constitution from scratch, you might have a shot at selling the view above. However, there are now about a zillion federal cases that interpret just what “jeopardy of life and limb” means. Hint: it’s not your view.
- Rick
IANAL, but as I recall, this is what happens when there’s a mis-trial, or a hung jury. For the second trial, they have to get a jury that wasn’t aware of the first trial*, or could be “impartial” and make decisions based solely on the facts presented in the case.
This happened in NJ recently with the trial of Rabbi Neulander. The first jury was “hung”, the second convicted him. (There was a change of venue (town) for the second trial.)
*Always made me wonder in the high profile re-trials - would I want to be judged by a group of people that were so clueless or disinterested that they hadn’t heard of a big (previous) trial?
Actually, what I meant was that the states might provide additional protection, above and beyond that of the fifth amendment. State law cannot contradict federal law, AFAIK.
However, after looking at some of the cases cited, it appears that I was wrong about the fifth amendment applying only to capital crimes. Excuse me while I look up my high school civics teacher and slap him around a bit.
No, Pravnik, I just didn’t feel that your post really addressed tjblack’s assertion, and I see that he agrees. That, of course, doesn’t make him right, and i see that Bricker has countered the actual assertion quite nicely.
That’s true.
No biggie. If you run into mine give 'em a couple for me too, just because. 
Bricker and I simul-posted, it was pravnik’s post that forced me to reconsider my statement. It’s quite clear that Bricker was unnecessarily harsh; two posts can hardly be considered “digging a hole.”
I see what you mean now. I misunderstood that part of what he was saying.
tjblack, every hole starts somewhere…
At the risk of continuing my harshness… I don’t think I agree I was unnecessarily harsh, although my intent was not to offend, and if I did, I apologize. But frankly, while one post isn’t digging a hole, two certainly is a start. And when your second post confidently asserts the error, leaving no room for the possibility that it might be in error… yeah, it’s the start of a hole.
- Rick