Double Jeopardy - NOT the movie!

This is NOT asking if, should one be wrongly convicted of a murder that never actually took place, can one be re-tried, if on release from prison, one kills the guy one was supposed to have bumped off before…

Different scenario altogether. I used to live in Maryland; Silver Spring to be exact. My kids went to Kennedy High School there with a guy by the name of Sam Sheinbein. Turns out Sam & a buddy didn’t like the way a drug deal went down, and hacked a 3rd guy to pieces which were deposited in a local dumpster. Sam’s buddy committed suicide in jail. Sam’s dad has dual Israeli-USA citizenship and business ties to Israel. Sam has been to Israel, but mainly for sight-seeing/ be with dad purposes. He eludes the Montgomery County cops, hops a plane to Israel, and claims Israeli citizenship. (Israel in 1996 has a law prohibiting extradition of any citizen to any other country).

3 years later, Sam is still in Israel. Israel has decided it is bound by the law not to extradite Sam. (That law has since been repealed, largely due to Sam’s situation, but it still protects Sam). Sam agrees to plead guilty, in Israel, and will serve a “24 yr”, well 16 yr until parole, well actually, in 6 yrs, he gets to go home for weekends, sentence in Israel.

Let’s say that 30 years later, he decides to return to the US. Can the sate of Maryland still try him? There is no statute of limitations for murder. There is overwhelming evidence (DNA, taped confession from buddy in jail, eyewitness accounts on deposition) that the DA will hold onto forever. Does the prohibition against retrial for the same offense protect him since his original conviction was in Israel?

Sue from El Paso

Off the subject but, didn’t Meyer Lansky (sp is probably SO wrong) try that same stunt?

I wonder how some schlum from MD could pull something off that a well connected mob figure couldn’t.

Yes. Double jeopardy prevents the same sovereign government from trying the same person for the same act twice. What you describe is (1) attempt to kill someone and (2) success at killing that same someone.
Two different acts give the same government two attempts at conviction.

Similarly, using Israel as a dodge will only work if Sam stays out of the US. Double jeopardy has odd, not readily apparent hitches. For example, double jeopardy only works against the same sovereign government. Imagine a group of police officers beat a suspect. A state criminal court jury acquits them. Then, the federal government tries those police officers for civil rights violations. Essentially, the police officers will be tried for the exact same actions twice, but by different governments. But, as two different sovereign governments are involved, the police officers are not in double jeopardy.

So, Sam does not have double jeopardy protection in the US, until some government in the US tries him for a crime. Then, he will only have double jeopardy protection limited to that government, for crimes stemming from the same act.

You have a very good point. The actual wording from the constitution is:

I think you could argue that only applied within the U.S., since it is, after all, the U.S. Constitution. However saying double jeopardy only applies to single sovereign governments implies that there is some sort of international law covering it. There’s not, as far as I know.

Also, when Alabama (as a random example) fails to convict someone of beating the stuffing out someone else, then the Feds bring the first someone up on civil rights charges, they are technically trying a different crime. Yes, it does seem to be an end run around double jeopardy, but it’s done on the basis of different crimes, not different governmental bodies.

Finally, the statute of limitations doesn’t even come into play, because it doesn’t ever apply when the suspect has fled the jurisdicition. For example, the statute of limitations probably does apply to statutory rape, but if Roman Polanski comes back to the U.S., even after 100 years, he would be subject to arrest. (That’s even if he doesn’t come back to fondle another 16 year old.)

The legalese is that, in such cases, the S of L is “tolled,” i.e., it stops running for that time.

It is done on the basis of different government bodies. That’s what keeps it from being an end run on the Constitution. If it were different crimes from the same act, as you describe, it would be prohibited by double jeopardy.

I don’t think statute of limitations has anything to do with Roman Polanski. The limitation is on the length of time that may elapse between a crime and a trial. Polanski’s trial is already over (I believe he plea bargained). He’s out of the country avoiding incarceration, not avoiding a trial.

By the way, I don’t think Federal government retrials for civil rights violations are done on the basis of different goverment bodies. If this were true, “double jeopardy” would be meaningless; you could be tried for any crime four times: by the city, county, state, and federal government.

The rational is that the defendants are being tried for different charges: i.e., civil rights violations, rather than assault and battery (or whatever). This is constitutionally questionable, because even though the charges are different, they arise from the same actions.

[[By the way, I don’t think Federal government retrials for civil rights violations are done on the basis of different goverment bodies. If this were true, “double jeopardy” would be meaningless; you could be tried for any crime four times: by the city, county, state, and federal government.]]
I’m still too lazy to look up the basic question, but subdivisions of state government are not “sovereigns.” In these parts, the only sovereigns are the federal government and the governments of the several states (I love that expression) – I think Amerind sovereignty is still a gray area.

I’m pretty sure you’re wrong about this. After all, appeals can take place to progressively higher courts, ultimately to the U.S. Supreme Court, as long as the defendant has been convicted. Once the defendant has bee acquitted no further appeals are possible. In the rare cases that the Feds decide to bring civil rights charges, they definitely do not call it an appeal. They consider it to be a different crime entirely.

Is that right about Roman Polanski? Did he skip bail before sentencing, or did he actually escape from prison? Still, either one of those is a crime, so he is facing new charges. The statute of limitations for the new crime is now “tolled”. (Cool term.)


On the “Today” show this morning, some law-enforcement person from Maryland (sorry I forgot who) said that an arrest warrant will remain open for both Sheinbein and his father, forever, not only if they try to return to the US, but even if they go to any Interpol country in Europe.

Difference between Meyer Lansky and Sam Scheinbein: Lansky tried to enter Israel and claim citizenship upon arrival under the “Law of Return” (which states that any Jew can become a citizen of Israel on request upon entering the country), but that law has exceptions for convicted criminals. In contrast, Sheinbein claimed to already be a citzizen even before entering the country, on account of his father’s citizenship, which made the red tape a lot stickier.

Interesting, but apples and oranges.
Jeopardy attaches at a particular stage of prosecution (rules vary in state and federal courts). What double jeopardy tries to prevent is that same government from trying the same person over and over again for the same act. The course of appeals has nothing to do with jeopardy. The same act may ultimately lead to different charges, but for double jeopardy, the significant factor is that two sovereigns are involved.

The trouble with this idea is that it is clearly what Constitution is trying to protect you against. One government has one chance to convict a criminal.
Big Iron is correct that for sovereignty purposes, all bits and pieces of state government are considered State government, therefore you only risk two sovereigns. For example. commit a crime in Harris County Texas, get arrested by the Houston city police, find yourself tried by the State of Texas. Although the lawyer prosecuting you works for Harris County, you would be prosecuted by the State of Texas, not the county or city.

Yes, this sounds odd. It is odd. It doesn’t make it any less true. Consider Timothy McVeigh. He was convicted of murder in a federal court. He still faces trial in an Oklahoma court. Same act, different victims. Double Jeopardy will not protect him from Oklahoma. He will face charges rather similar to the federal charges.

Common sense won’t get you very far in constitutional law.

Lawdy, methinks the Teeming Millions haven’t read their Constitution lately. THe 14th Amendment holds states to the Bill of Rights (this is implied by “equal protection under the law”). Thus states cannot try someone for the exact crime for which he has already been acquitted in Federal court. Of course, this only applies to the US. Israel, not having ratified our Constitution, is another matter entirely.

Someone else may have read the thing, but certainly hasn’t read the US Supreme Court cases interpreting it.

‘Selective incorporation’ is the process by which the Supreme Court, starting with Gitlow v. New York, has determined that the 14th Amendment’s due process clause includes protections against state action similar to those found to exist against federal action in the Bill of Rights. The equal protection clause is not involved. Among the rights selectively incorporated is the right not to be prosecuted twice for the same crime (double jeopardy).

The relevant citation is Heath v. Alabama (1985) wherein the Supreme Court decided that “The dual sovereignty doctrine provides that when a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences’ for double jeopardy purposes.” Thus, while the same action is under discussion (killing a person), there are two crimes (murder, a state crime, and civil rights violation, a federal crime).

As for the original thread, double jeopardy would not necessarily apply. In the absence of a treaty requiring the United States to abide by the decision of the Israeli court, the issue would be up to Maryland to decide. Note that the aviators in the gondola disaster in Italy were tried there and no retrial allowed here for the same charges. I think that Mr. Shinbein is likely to remain in Israel quite a long time.

No, the Marine flight crew was tried by courts martial at Camp Lejeune, North Carolina. The Italians would love to be allowed to try these men in Italian criminal court in Italy. However, the status-of-forces agreement (SOFA) between the US & Italy carefully delinineates jurisdiction: in cases in which the accused were “on duty” during the alleged crime, the US military has jurisdiction. In cases in which the service members were off-post and off-duty at the time of the alleged incident, they can be tried by Italian courts, but this may be waived should the Italians choose to do so. Clearly, in this this case, they were flying a US plane on an authorized training mission, and the SOFA directed that the US military courts determine whether they were negligent in the performance of their duty. They will never face trial in Italy; however incidents like this cause tremendous strain between US forces and the host nation, and ultimately may result in our “invitation to station troops there” to be rescinded.

Sue from El Paso

Re: OP:
Ultimately, I suppose this is up to courts to decide how to interpret the Constitution, but it seems to me that the Constitution says that the US can’t put anyone in double jeopardy, even if the first jeopardy was in a different country; the relevant part makes no reference to where the jeopardy occurs, which to me implies that it doesn’t matter. Could we get a lawyer’s opinion on the matter?

Re: federal/ state prosecution
According to a Am. Gov. teacher I had (who was a lawyer) once the federal gov starts prosecuting, state prosecution is not allowed; i assume it works the other way around. The thing about a civil trial is that it’s civil; the Constition says no “jeopardy of life or limb” which implies criminal procesution. When was the last time you saw the loser of a criminal trial lose life or limb?

Re: appeals:
The gov can’t put you in double jeopardy, but you can. If you’re convicted, you can (under some circumstances) appeal, putting yourself in second jeopardy. But if you’re acquitted, the gov can’t appeal, because then they would be putting you in double jeopardy. And appeals aren’t always based upon different levels of sovereignty; you can appeal to the same level of court.

Re: Timothy McVeigh:
Although all the deaths are the result of one act, they’re considered different crimes. They might even be able to hold a different trial for each victim; I don’t know.

" ‘Ideas on Earth were badges of friendship or enmity. Their content did not matter.’ " -Kurt Vonnegut, * Breakfast of Champions *

[[Lawdy, methinks the Teeming Millions haven’t read their Constitution lately. THe 14th Amendment holds states to the Bill of Rights (this is implied by “equal protection under the law”).]] Ennius
Lawdy, Ennius – the “incorporation” of the Fifth Amendment means (here) is that the states are also prohibited from multiple prosecutions for the same offense.

Oh, and that’s MOST of the Bill of Rights.

Yikes! that is what I get for not proof-reading a post <making most humble bow of apology> I meant what you said, but got it backward…

And as you point out, the ‘agreement’ between the US and Italy sets the boundaries. :slight_smile:

A criminal trial of a civil rights violation is still a criminal trial. So, for instance, when the policemen accused of beating Rodney King were aquitted of state law based charges, they were then tried in federal court for the criminal charge of violating King’s federal civil rights, I believe.

By the way, if anyone wants to get a really fun look into the ins and outs of the ‘double jeopardy’ clause of the constitution, look at the court decisions on asset forfeiture, which is where the great debate on the subject currently rests.