I’m sure I reveal no secret to moviegoers when I say that in Bruce Beresford’s last film, “Double Jeopardy”, Ashley Judd’s character is operating on the (questionable) legal advice from a prison inmate that “if you were convicted for your husband’s murder, but your husband faked his death, then once freed you can go kill him with no apprehension of criminal conviction.”
What’s the criminal attorney’s legal opinion on this?
Jacques Kilchoer
Workers of the world, unite! You have nothing to lose but your chains.
Not a legal expert, but I would guess it is something along the lines of “The only knowledge of the law this scriptwriter has is limited to those little tags on mattresses.”
It’s not bragging if you can do it - Satchel Paige
I’m not an attorney, and I’d like to hear a legal opinion, but my understanding was that a criminal charge is always specific: “that on the night of September 2nd, 1985, the accused Daisy Duck did wilfully murder her husband, Donald Duck.”
Thus, the charge “that on the night of May 5th, 1998, the accused Daisy Duck did wilfully murder her husband, Donald Duck” would be a separate charge, on which she had not previously been tried… so double jeopardy would not apply.
Not to be overly punctilious (though isn’t that what the legal system is all about? :)), but I imagine that it should say “on or about the night of September 2nd”, otherwise the defense attorney could say “well actually Daisy Duck killed Donald on 3 September, so she cannot be convicted on the basis of this accusation.”
Otherwise, CK, your argument seems convincing to me.
Jacques Kilchoer
Workers of the world, unite! You have nothing to lose but your chains.
I haven’t seen the movie yet, but I read the general plot of DJ in one of those urban legend comic books. I’ve also seen it spread around as truth in many e-mails. Doesn’t make it viable.
I think if the wrongly accused did kill the person who framed them for their own murder, the courts might:
[list=1][li]overturn the first, indict on the second (1st deg., 2nd deg., manslaughter), plus add on a conspiracy to commit murder charge, if the accused found out about the fakery and didn’t tell the authorities for a while before the real murder.[/li][li]if the discovery of the fraud was right before the murder: overturn #1, manslaughter 2nd deg.[/li][li]if the discovery so enraged the accused that they immediately killed the faker: wrongful death or maybe justifiable homicide.[/list=1][/li]
The way I’ve almost always heard the UL was the 3rd way: The accused got out of jail early (good behaviour/parole) and went somewhere the two of them frequented, saw the supposed murder victim, and killed them in rage.
I’m not a lawyer, but I watch them on TV…
According to Court TV, the movie is incorrect (as are most movies when it comes to legal stuff). If she was convicted, but later kills him for real, the original conviction would be overturned (regardless of if she served time or not) and she would be charged again.
Plus, there are many ways to skin a cat- she wouldn’t automatically get the exact same charge. (depending on the circumstances of the murder).
In the “Jenny Jones” trial, the defendant was tried twice- first time guilty of 2nd degree murder. Turns out there was some problem with the jury, so he was tried AGAIN for the exact same crime of 2nd degree murder and found guilty again.
I’m not a lawyer, but I watch them on TV…
According to Court TV, the movie is incorrect (as are most movies when it comes to legal stuff). If she was convicted, but later kills him for real, the original conviction would be overturned (regardless of if she served time or not) and she would be charged again.
Plus, there are many ways to skin a cat- she wouldn’t automatically get the exact same charge. (depending on the circumstances of the murder).
In the “Jenny Jones” trial, the defendant was tried twice- first time guilty of 2nd degree murder. Turns out there was some problem with the jury, so he was tried AGAIN for the exact same crime of 2nd degree murder and found guilty again.
Not an attorney, either, and doubtless Oliver Antonin Douglas (aka DSYoungEsq) will be along shortly, but I think double jeopardy would apply. Same accused person, same alleged victim. I haven’t seen the movie (plan to tonight), so I don’t know whether, in the movie, the accused has finished serving her sentence for the original charge, but I don’t think the original conviction would necessarily be overturned. Both the state and the defendant, as I understand it, would have to demonstrate that there was demonstrable error in the first trial, or that the jury was tainted. The fact that an innocent person was convicted would not, in and of itself, mean that reversible error had occurred. If the Constitutional guarantee against double jeopardy is to mean anything, it surely must apply sometimes, and this is probably the classic case. Would the local district attorney play along and not try to get the original conviction reversed? Hell, no! There’s plenty of political gold to be mined there.
I don’t know how many of you may be acquainted with the Brenda Sue Schaefer/Mel Ignato murder case that played out (and, to a lesser extent, continues to play out) in the Louisville locality. I recently saw a review of the case on a national newsmagazine, but you may have missed it. If any case called for a way to get a trial reversed, this would be it. Brenda Sue Schaefer was a beautiful young woman who fell under the influence of Mel Ignato. Without going into too many details of the case, she ended up tied across a coffee table, getting strangled slowly to death as Ignato snapped Polaroids of the process.
He buried her body in a shallow grave where it was found by the police after a female cohort of his turned states’ evidence.
Incredibly, despite the eyewitness testimony of the accomplice, enormous amounts of other forensice evidence, etc., the jury (from a different venue) acquitted him. It was only months afterward that the Polaroids were found concealed in a heating vent beneath carpet that was being removed after Ignato house was sold by a subsequent owner.
Despite incontrovertible evidence, Ignato walked. They managed to get him on a perjury charge (for lying about his innocence at the original trial) but he sooned served that time and is now on parole.
Ignatio is a definite case of double jeopardy, but the movie has everything backwards. Double jeopardy means that, once acquitted of a crime, you can’t be charged with that same crime again (other crimes or civil suits can be charged). If you’re convicted, double jeopardy isn’t a factor.
If the events occurred as they did in the movie, the woman would have been pardoned or acquitted of the “first” murder and tried for the second. The stupidest thing she could have done was shoot her husband. Better to bring the police with her, arrest him, and sue his ass off.
The woman learned this double jeopardy from a lawyer who she met in prison. If the lawyer giving the advice was any good, why was she in prison?
So, if I were to hold up a bank, get arrested, and do my time, I should be able to hold up that same bank when I get out? I mean, its not like they could arrest me for committing the same crime again, now could they?
Or if I were arrested for and found guilty of robbing that bank, although I am innocent of that charge, when I get out I can hold up that bank because I have already done my time for that deed?
Caution: May contain sarcasm
Dr. Fidelius, Charlatan
Associate Curator Anomalous Paleontology, Miskatonic University
Cave ab homine unius libri
Even if the charges wer note specific and she could not be charged again, I am sure that she would be charged with all sorts of things like Assault, etc.
You know, doing what is right is easy. The problem is knowing what is right.
Well . . . duuhhhhhh. That’s what I get for trying to forego my daily tankard of Arabica infusion. I was home an hour and turning this over in my head some more when it hit me like the hot kiss at the end of a wet fist – of course the Constitutional protection against double jeopardy would only apply to someone acquitted of a charge; as CKDH pointed out, separate acts, separated by time and (probably) by space.
And just a word of appreciation to all of you for resisting the urge to tear me a new one . . . except, of course, for you, DrFidelius, you plop-buttered groat cluster, you.
I was watching Regis & Kathie Lee (don’t ask why – I don’t know) and they had Roger Ebert on. They asked him about it and he said that the movie was based on faulty legal advice. Ok, the guy’s a movie critic – not the best source of advice. But then they had a call-in from a well-known attorney whose name escapes me right now (dammit! dammit! dammit!). Anyway, he addressed it and said that it is simply false. No ifs, ands, or buts about it.
As several people (Zette, RealityChuck) have pointed out, of course “Double Jeopardy” doesn’t apply, since that principle is used when the accused is acquitted in the first trial.
Thank you for pointing out the obvious. I would agree with Zette (and CourtTV) that the original conviction would be overturned and she would be tried again. But if she had served the first prison sentence in full, I can’t believe that any court wouldn’t be extremely lenient in the second trial. I can see the headlines now: “Woman convicted to a 15-year prison term for murdering her husband a second time”
Jacques Kilchoer
Workers of the world, unite! You have nothing to lose but your chains.
Well, I WAS going to let this thread go, as the issue was recently discussed in another thread, but recent mistaken statements of American law compel my attendance. Besides, we can’t let the fans of Oliver Antonin Douglas down, can we?
US Constitution, Amendment V
Green v. United States, 355 U.S. 184, 187-88 (1957). The
passage is often approvingly quoted by the Court
The ‘double jeopardy’ clause can prevent a trial after a mistrial (e.g. Downum v. United States, 372 U.S. 734 (1963), after an aquittal (e.g. Green v. United States, 355 U.S. 184, 188 (1957):"[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that `even though innocent he may be found guilty.’ "), and after a conviction (e.g. Green v. United States, 355 U.S. 184 (1957)).
Basically, the rule prevents the prosecution from multiple bites at an apple, which give it the time and knowledge to hone its attack on the individual.
As to the movie, the likely result would be that ‘double jeopardy’ would not bar a prosecution for the actual murder. Because the evidence for the ‘second’ murder would be different from the evidence for the ‘first’ murder, the two offenses would not be the same offense (seeBlockburger v. United States, 284 U.S. 299, 304 (1932) where the rule was ennunciated, though that case is itself not a double jeopardy case; seeGore v. United States, 357 U.S. 386 (1958) and Brown v. Ohio, 432 U.S. 161 (1977) for examples of application of the rule). I don’t think that a case precisely on point has been litigated to the Supremes, though, so you never know.
C’mon, ‘Dizzy’, ‘fess up! I’ve known plenty of lawyers in my life and I’ve never known any that could carry around much more than their mistress’ phone number in their head. What do you do, sit around in front of a Westlaw database all day, switching back and forth between legal questions on the SDMB?
Also helpful is a recent hornbook on the subject. Appropos of this, I note that Larry Tribe just issued a new edition of his. He may be a left of left liberal, but he is pretty fair in his analysis of most subjects.
Thank you, DSYoungESQ, for “the straight dope,” i.e.
My puny brain is trying to come up with a legal example of “a trial after a conviction.”
Would this be a correct example?
Person A is convicted of assault against person B, but gets a very lenient sentence. The D.A., incensed by the mildness of the punishment, wants to take them to trial a second time, but cannot because of “double jeopardy”.
An additional question: in the case depicted in the movie (or any other case for that matter), the D.A. could very well decide not to prosecute the wife, correct? Does the D.A. have to have a legally “sufficient” reason not to prosecute, or can s/he just say “I’ve decided not to take this case to court. Thank you for asking.”
Jacques Kilchoer
Workers of the world, unite! You have nothing to lose but your chains.
