# Double Jeopardy, or not? **URL:** \ **Category:** Great Debates\ **Created:** [October 14, 2005, 11:43am UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205 "2005-10-14T11:43:02Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [October 14, 2005, 11:43am UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/1 "2005-10-14T11:43:02Z")
From the [New York Post](http://www.nypost.com/news/regionalnews/53556.htm) (registration required, I think). Back in '73, there was a riot in Brooklyn and a teenager was shot. The shooting eventually resulted in his death. > [@](#): > > José Colon, then 15, was left a quadriplegic after he was shot in the neck by Ralph Alini, now 54, on June 27, 1973, in Park Slope. > > Colon died at age 47 in October 2004, and a hospital-ordered autopsy determined the death was a result of the shooting. His attacker spent 3 years in jail for the crime. > [@](#): > > Alini and another man, Ralph Urrutia, were arrested shortly after Colon’s shooting. > > Both men were convicted, but on appeal, the convictions were overturned on a legal technicality. > > Instead of retrying the case, the Brooklyn District Attorney’s Office accepted a plea of three years each for reckless endangerment in 1978. > > The men were released in 1981. Urrutia died shortly after that. Now, 25 years later, Alini has been arrested for the murder of Colon. I assume (hope?) that there is some legal loophole that makes this arrest acceptable from a constitutional standpoint. From a moral standpoint, though, I really don’t like this decision. The DA had his chance to convict on attempted murder, and didn’t. He offered up a sad 3yr plea instead. Alini doesn’t even get the benefit of being the “accused shooter” anymore because he pled guilty to the crime. Is that potentially part of the prosecutions case as the trial goes forward? It just seems really out of line that you can take an offered plea for a crime, then have it resurface years later as another crime to be punished for. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 14, 2005, 12:58pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/2 "2005-10-14T12:58:45Z")
Double jeopardy protects against successive prosecutions for the same crime. Two crimes are not “the same” for purposes of double jeopardy analysis if each includes an element that the other does not. For example, “robbery” and “armed robbery” are the same crime, because robbery includes all the elements of armed robbery. Robbery is known as a “lesser-included offense” of armed robbery. In this instance, the original convictions are of no consequence; they were overturned. We need only concern ourselves with the conviction for reckless endanderment. Does it bar a subsequent prosecution for murder? In other words, in the facts of this case, would the People have to prove a different element on the murder charge than they did for the reckless endangerment, and did they have to prove a different element for reckless endangerment than they did for murder? I’m no expert on New York’s laws, but I’d say the answer is yes – that previous jeopardy does not bar this murder conviction. I of course defer to someone more knowledgeable about New York. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [October 14, 2005, 1:28pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/3 "2005-10-14T13:28:47Z")
Even when double jeopardy does apply, can they get a second bite at the cherry by persuading the Federal government to prosecute for transgression of civil rights, as in the Rodney King case? Or is that an extremely rare occurrence? ---
**Author:** ![foolishliberal](https://avatars.discourse-cdn.com/v4/letter/f/258eb7/32.png) [@foolishliberal](https://boards.straightdope.com/u/foolishliberal)\ **Post date:** [October 14, 2005, 1:53pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/4 "2005-10-14T13:53:13Z")
I would think (and hope) that the issue at hand here would be the Statute of Limitations and not DJ. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 14, 2005, 1:55pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/5 "2005-10-14T13:55:47Z")
> [@aldiboronti](#): > > Even when double jeopardy does apply, can they get a second bite at the cherry by persuading the Federal government to prosecute for transgression of civil rights, as in the Rodney King case? Or is that an extremely rare occurrence? Very rare. You’d have to show that the murder was committed for the purpose of violating the victim’s civil rights, or “under color of law,” or some other fact to invoke Federal jurisdiction. > [@foolishliberal](#): > > I would think (and hope) that the issue at hand here would be the Statute of Limitations and not DJ. In general, murder is not subject to a statute of limitations. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [October 14, 2005, 2:01pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/6 "2005-10-14T14:01:35Z")
I’m under the impression that there’s no statute of limitation on prosecution for murder after the murder has been committed; however, is there a law in New York that requires the death to occur within a certain time (just for fun, let’s say two years) after the act which ultimately causes the death? ---
**Author:** ![foolishliberal](https://avatars.discourse-cdn.com/v4/letter/f/258eb7/32.png) [@foolishliberal](https://boards.straightdope.com/u/foolishliberal)\ **Post date:** [October 14, 2005, 2:18pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/7 "2005-10-14T14:18:04Z")
From what I’ve heard, the statute applies to all but first-degree murder cases. I googled it and out came [this blurb](http://www.lawyers.com/ask_a_lawyer/q_and_a_archive/view_archive/index.php?QID=18-AUG-03&site=537). Basically the statute varies from state to state, but the example cited (Florida) was as I had thought. I’ve yet to find NY’s specific statute, but in any case the crime (as desribed by the OP) sounded like a random occurrance or robbery-gone-awry. Even if DJ wouldn’t apply and he could be retried, the statute would most likely kick in and prevent him from being retried for what would probably be tried as manslaughter. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [October 14, 2005, 2:19pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/8 "2005-10-14T14:19:51Z")
There used to be a “year-and-a-day” rule, (IIRC), but I believe that in modern law, the murderer’s action must be both the “actual” and “proximate” cause of death “Actual” means that without that action, the death would not have occurred; “proximate” means that there is no unlikely chain of events leading from the action to the death. Both appear to be the case here. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [October 14, 2005, 3:31pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/9 "2005-10-14T15:31:28Z")
Bricker, I think I’m getting the gist of why it wouldn’t be DJ. It’s more clear to me if I think of the first offence being something like illegally discharging a firearm. Obviously a conviction on that offence wouldn’t absolve you if someone was struck and killed by the bullet, even though it is a single action by the criminal. Just FTR, if he had pled guilty to (or been convicted of) Attempted Murder, would he still be on the hook if the victim died? ---
**Author:** ![mazinger\_z](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@mazinger\_z](https://boards.straightdope.com/u/mazinger_z)\ **Post date:** [October 14, 2005, 4:27pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/10 "2005-10-14T16:27:14Z")
I’m not registered to read that window flyer they call the NYT 🙂 Anyway, I’m assuming that the DA will go after 2nd Degree Murder, which is a Class A felony according to NY law (see Penal Law or PEN). According to [NY law](http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS) a prosecution for a Class A felony can commence at any time (Id. at Criminal Procedure or CPL). I agree with **Bricker** , DJ will most likely not apply because the dude copped a plea for a different crime, i.e. reckless endangerment, as opposed to 2nd degree murder (-- where I agree that the two elements are different.) A cursory review reveals that Reckless Endangerment in the First Degree (under Assault, or 120.something) is a Class D Felony, and has different requirements than 2nd Degree Murder. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [October 14, 2005, 4:42pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/11 "2005-10-14T16:42:07Z")
> [@Cheesesteak](#): > > Just FTR, if he had pled guilty to (or been convicted of) Attempted Murder, would he still be on the hook if the victim died? I don’t believe so. I believe (but don’t remeber for certain without looking) that attempted murder is a lesser included of murder, so a conviction of attempted murder would bar a conviction on murder under the merger doctrine. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 14, 2005, 6:39pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/12 "2005-10-14T18:39:38Z")
> [@pravnik](#): > > I don’t believe so. I believe (but don’t remeber for certain without looking) that attempted murder is a lesser included of murder, so a conviction of attempted murder would bar a conviction on murder under the merger doctrine. Yup. You can’t possibly complete a crime without attempting the crime, so that every attempt is a LIO of the completed crime. I don’t know that I’d say it bars it under the merger doctrine, though. The merger doctrine would apply when discussing how the two charges merge into one for conviction and sentencing purposes. That is, if someone was charged with attempted murder and murder, and the jury returned guilty verdicts for both, then the offense merges into one count of murder for conviction and sentencing. For DJ analysis, we apply the Blockburger “same elements” test, and observe that a conviction on one charge creates a jeopardy bar to a prosecution on the second charge. I don’t say that your use of it is outright wrong, but if I were writing the motion to dismisss the second charge, I don’t think I’d haul out the merger doctrine. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 14, 2005, 7:37pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/13 "2005-10-14T19:37:32Z")
Somebody has to quote Sideshow Bob here: > [@](#): > > Attempted murder, now honestly, what is that? Do they give a Nobel Prize for attempted chemistry? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [October 14, 2005, 10:43pm UTC](https://boards.straightdope.com/t/double-jeopardy-or-not/326205/14 "2005-10-14T22:43:22Z")
> [@Bricker](#): > > Yup. You can’t possibly complete a crime without attempting the crime, so that every attempt is a LIO of the completed crime. > > I don’t know that I’d say it bars it under the merger doctrine, though. The merger doctrine would apply when discussing how the two charges merge into one for conviction and sentencing purposes. That is, if someone was charged with attempted murder and murder, and the jury returned guilty verdicts for both, then the offense merges into one count of murder for conviction and sentencing. > > For DJ analysis, we apply the Blockburger “same elements” test, and observe that a conviction on one charge creates a jeopardy bar to a prosecution on the second charge. I don’t say that your use of it is outright wrong, but if I were writing the motion to dismisss the second charge, I don’t think I’d haul out the merger doctrine. Yeah, you’re right. I was pretty sure that attempt was a no brainer for lesser included offenses of completed crimes, but had a nagging feeling there was some unremembered exception for inchoate crimes. I would mildly argue that the merger doctrine isn’t completely inappropriate; although the common law rule is as you describe, the term “merger doctrine” is sometimes used (or misused, if you prefer) in cases barring subsequent prosecution under _Blockburger_.