I just saw in the NYT that Paul Manafort’s state charges were dismissed by a state judge in New York because they are based on the same conduct as the federal charges. I thought that was allowed in spite of double jeopardy since it is two sovereign entities bringing charges. Since the NYT site is paywalled, I won’t link to it. It is easy to find a story in Google.
Can anyone explain the state judge’s reasoning?
All I could find about the judge’s reasoning is here.
Apparently charging him in case he is pardoned is a violation of double jeopardy, according to the judge. IANAL.
The decision is being appealed, so it isn’t over. Manafort has health problems, which could affect the outcome of the case, one way or another.
Regards,
Shodan
I can see a problem with a DA making such a charge for the express purpose of retrying someone who may be pardoned. But I assume there is an actual crime for which he could be charged.
IIRC from the other threads on the general topic of double jeopardy with state and federal courts is that it usually goes the other way with the feds stepping in after acquittal at a state level. Do I have that right? Do states often step in under any circumstances after a federal case is resolved?
I can see a problem with a DA making such a charge for the express purpose of retrying someone who may be pardoned. But I assume there is an actual crime for which he could be charged.
IIRC from the other threads on the general topic of double jeopardy with state and federal courts is that it usually goes the other way with the feds stepping in after acquittal at a state level. Do I have that right? Do states often step in under any circumstances after a federal case is resolved?
IANA constitutional lawyer, but the issue, as I understand it, is that New York State has a legislatively-passed statute which explicitly prohibits state charges when a similar case has been taken in federal court. This is in contrast to most states and the US federal government which do not have such a statute. The U.S. Fifth Amendment bars double-jeopardy, but the US Supreme Court has held that it does not forbid both state and federal charges. I believe most (not-New York) state courts have also held that their statutes and Constitution do not forbid it either.
IANAL (and never regretted it), but permit me to describe what I think I understand about this, from stuffs I have read about it:
What I think I know is substantially what Quercus wrote above. But perhaps I can amplify a bit.
Hang tight. This gets convoluted.
Yes, there are Supreme Court ruling(s) to the effect that double jeopardy protection does not apply between states and Federal because they are separate sovereigns. So if one commits an act that is a crime at both state and Federal levels, one can be tried and acquitted at either level and still by tried at the other level.
Some state legislatures, New York State included, thought this was unjust. So they passed laws giving double jeopardy protection at the state level in cases where someone has been acquitted in a Federal court. Thus, if you are acquitted in Federal court, these states cannot try you again in State court. BUT if you are tried and acquitted in State court, you could still be tried again in Federal court. States can tell themselves what they can do, but they can’t tell the Fed what to do.
I am guessing here that this is why the state judge says Manafort cannot be tried again in State courts for the same acts that he was tried and convicted for in Federal court.
BUT WAIT – There’s more, and it gets messier.
What happens if the President pardons someone? Is that person considered acquitted, and thus protected from State prosecution for the same crime in those states with this law? I believe that has not been tested in courts. And the circumstance with Manafort is that the state wants to prosecute Manafort just in case the President MIGHT pardon him of the federal conviction (which Trump hasn’t done yet).
To address the possibility of Presidential pardons that the state might still wish to prosecute, the State of New York very recently passed yet another new law, specifying that if the President pardons someone of a federal conviction (with some very specific specifications as to who and when this applies), they can still be tried in State Court. I think it’s limited to the president pardoning himself or his family or maybe some certain kinds of others. What I think I know is vague here. But this new law seems to NOT apply to Manafort.
That’s what I think I know about all this.
Here’s an NBC report about the law NY passed, from when Gov. Cuomo signed it in October. The details given there are:
Okay, so given the details that Topologist just reported, one might wonder just how that affects (or doesn’t) Manafort. First, note that the law deals specifically with cases of presidential pardons, and Manafort hasn’t been pardoned (yet). Second, is Manafort’s case one of those covered by the new law?
I wonder if maybe, if Trump pardons Manafort, THEN the state could re-open its case against him?
I think that’s what’s happening: Since Manafort hasn’t (yet) been pardoned, the new law doesn’t apply, but the existing NY law against double jeopardy does. If and when Manafort is pardoned, then the new law could come into play. By the way, that law was passed very much with Manafort’s case in mind.
The issue now seems to be that the charges brought by NY are essentially federal ones on which the jury deadlocked, which were then dismissed. The issue then is whether the state recharging him is a case of double jeopardy; the prosecutors thought not (he was never convicted or acquitted of those charges), but the judge has ruled it was (he was previously tried on them). Now, of course, we’ll see what the appeals courts have to say.
IANAL, IAAM (I am a mathematician).
The legal theory is that there are two sovereigns, the state of New York and the United States as a whole. Mr. Manafort broke the laws of each sovereign, and therefore committed two distinct offenses. The concept of double jeopardy is regarding the same crime (“offense” in the constitution), not the same conduct.
See United States v. Lanza, 260 U.S. 377.
~Max
Reading comprehension fail, sorry. But there’s the cite for the dual sovereignty doctrine you mentioned, which is still good law.
~Max
Prosecutors re-try cases all the time where a previous trial was deadlocked or a mistrial was otherwise declared.
A question I have here is: Is the judge’s dismissal Forever, or can the case be reinstated once the relevant conditions change?
ETA: When a judge dismisses a case, doesn’t he have the prerogative to dismiss “with prejudice” (meaning the case is dismissed forever) or “without prejudice” (meaning the case can be brought again)? Short of reading the judge’s actual order, do we have information about these details of Manafort’s dismissal?
Also: In a nearby thread (the one asking if Mueller’s investigation turned a profit), it is mentioned that Manafort has been ordered to forfeit some massive amount of real estate property, up in the bazillions of dollars worth. Is this a civil forfeiture?
Regardless of what ends up with Manaforts multifarious criminal cases, does that forfeited property stay forfeited? If Trump pardons Manafort, AND if it ends up that New York can’t try him, does he get his property back?
I would explain it by noting that this Judge is a Republican, appointed by a Republican Governor.
More detailed discussion of that will probably have to be in a different forum than GQ.
Apparently the change in New York state law to permit state charges if a person received a federal pardon* was not retroactive. It does not apply to crimes committed prior to enactment of that law if the person has already been tried on that offence.
As a result state charges against Manafort are still barred for the same offence that led to his federal conviction, even if he receives a pardon from Trump.
One other option Trump would have for Manafort is a commutation of his sentence. That would leave the conviction intact but allow Manafort to be released from prison before completing his sentence.
This change in New York state law applies to a small subset of federal offences committed by persons with some sort of specified connection** to the president offering the pardon. The ban on double jeopardy trials would still be in place for other more run-of-the-mill offences that would implicate both federal and state laws.
- The new law refers repeatedly to “a reprieve, pardon, or other form of clemency for the offense by the President of the United States.” It is not solely limited to a pardon.
** Connections specified include things like working in the White House of for the president’s election or re-election campaign, or relation by consanguinity or affinity within the sixth degree, etc…
So that’s the sixty-four-thousand dollar question… or rather the six-months-to-life-question:
Does the outcome of Manafort’s federal trial meet the conditions of the older double jeopardy law, “already tried”? Presumably, if the feds had the option of trying him again instead of dismissing the charges, the argument on state appeal would be that the defendant is not “already tried” since the case is not settled.
Does dismissal of charges by federal prosecutors meet the criteria of the new law as “another form of clemency”? Since the President did not explicitly order the result, I assume not - unless it were to be discovered that he did.
Jeopardy attaches once the jury is empaneled. They don’t have to reach a verdict.
Waitaminnit. As I mentioned above, people get re-tried all the time when an earlier trial deadlocked or was otherwise declared a mis-trial. Is that not correct?
Well, yes. A hung jury that reaches no verdict can result in a retrial. But if the prosecution drops its case after the jury is impaneled then double jeopardy prevents retrial on the same charge.
A retrial may occur after a hung jury
In 1824 Josef Perez was charged with the capital crime of piracy. The jury failed to reach a verdict and the judge discharged the panel. His lawyer petitioned for Perez’s release on the grounds of double jeopardy. Eventually the Supreme Court ruledin United States v. Perez that":
No real reasoning or legal analysis. It was just the high court saying that he could be retried and that courts should be really careful about this stuff.
Moreover, in 2012 a jury reached a unanimous decision of not guilty on the charges of capital murder and 1st degree murder in the trial of Alex Blueford. However the jury deadlocked on the lesser charge of manslaughter and had not voted on a lesser charge of negligent homicide. The jury reported to the judge and he told them to keep deliberating. Eventually the jury was discharged and a mistrial declared.
You might think that a retrial would be limited to a charge of manslaughter or negligent homicide since the prior jury forewoman did inform the judge verbally in open court that they unanimously agreed Blueford was not guilty of the more serious offences. But that was not how the Supreme Court ruled. The jury had not filled out the verdict form on the two more serious charges which the high court deemed necessary to give finality to their verdict.
Blueford pled no contest to 1st degree murder in the retrial, a charge the jury in his first trial unanimously agreed he was innocent of. In exchange the prosecutor agreed to a ten year sentence. Blueford was paroled after three and a half years in prison.
Jeopardy attached after the jury is impaneled
There is a federal rule of criminal procedure that states that jeopardy attaches in a jury trial once the jury is impaneled. And jeopardy attaches when the first witness is called and sworn in a bench trial (judge alone trial).
In Downum v. United States (1963) :
Short and to the point. Prosecution was not ready to proceed. Defense objected. And the high court ruled that the trial judge should have dismissed those charges as the defense objection raised was proper.