Should this be a Double Jeopardy exception?

I was given to thinking about the Double Jeopardy clause in our Constitution. I generally think that it is a good idea that the state or the feds have only chance to convict you for a crime. I think it is a good idea that a “Not Guilty” verdict is final and non-appealable.

However, I recently began wondering if an exception should be made. Specifically, the exception would be in a case where the defendant later comes forth and admits that s/he, in fact, committed the crime that they were acquitted of.

For example, IMHO, it would be a good thing to retry OJ Simpson if he now came forth and shouted from the rooftops that he committed the murders he was charged with.

Now, I know that very few, if any, acquitted defendants would come forth and admit their crimes, even with the DJ protection in place. But you never know…

What brought this matter into sharper focus is the recently concluded Lemrick Nelson trial. For those who are unfamiliar, Lemrick Nelson was charged with murdering Yankel Rosenbaum during a riot in Crown Heights, Brooklyn in August 1991. The riot was touched off when a car in the motorcade of Rabbi Menachem Mendel Schneerson struck two children, Gavin and Angelo Cato. Gavin Cato died. For the next three days there was general rioting in the streets of Crown Heights. On the first night of the riots, Yankel Rosenbaum was killed by a group of youths who shouted “Get the Jew.” Rosenbaum identified Nelson as the person who stabbed him before he died.

At the state trial, Nelson’s defense was that he was framed and was not at the scene of the crime. He was acquitted of the charge by a jury in October 1992. He was later charged under Federal Civil Rights statutes for violating Rosenbaum’s civil rights. His defense at that trial was the same as in the first trial. He was convicted and sent to prison. The conviction was later overturned on a procedural error by the judge. At the third trial, Nelson changed his strategy. Now, he claims, he did stab Rosenbaum that night, but did so because he was drunk on beer, not because Rosenbaum was Jewish. He was again convicted of violating Rosenbaum’s civil rights, but was acquitted of being responsible for Rosenbaum’s death.

I’m not aware if he actually testified at either his state trial or the first federal trial. As a side question, if he did, could he be charged with perjury for denying his role in the murder which he later admitted?

In any event, this seems to me to be the perfect case for a DJ exception to be made. The defendant’s defense was that he did not stab Rosenbaum, but later, in open court, he admitted to stabbing Rosenbaum. It seems to me that when a defendant is so brazen as to openly admit that he cheated the system and was in fact guilty of the crime of which he was acquitted, a DJ exception could be warranted.

Of course, I know that this is all hypothetical. I know that such an exception would never pass as an ammendment to the Constitution. However, I’m curious to hear other people’s takes on the matter.

Zev Steinhardt

Question: What is meant by “violating his civil rights” in this context? Is that essentially him being charged with a hate crime?

To answer your question: No. His defense was made with the understanding that he was protected by DJ. If we made an exception, the entire trial would be invalidated.

Whether the double jeopardy clause should have an exception or not, it seems unfair to create one and apply it retroactively. He presumably admitted to the act only because he knew he would be protected from another prosecution. If this kind of exception was already in existance, he would not have admitted to stabbing Rosenbaum. Changing the rules in the middle of the game to ensure the state can convict whomever it wants is one of the things the Constitution was written to prevent.

No. It is the governments job to properly prove its case the first time around, no matter what.

OK, I wasn’t perfectly clear. I’m not necessarily saying that we should change the rules ex post facto with regard to Nelson. I meant with regard to future cases.

Zev Steinhardt

If you did that in the future any defendant capable of mounting a sucessful defense just wont admit to it. The only people you’d catch are people so stupid or incompetently represented that you don’t need to bend the rules to convict them.

I think there’s also the change of coerced or false confessions. I think DJ has to be absolure. I wouldn’t want to mess with it.

There doesn’t seem that much point - if admitting you did it puts you in jail, who would?

I agree it’s galling though when someone thumbs their nose at the law.

A similar case would be 20 yr old cases where DNA evidence suddenly appears. Maybe there could be a retrial if the evidence is strong enough. Or after x years, (possibly allowing only one, or maybe on every x years.)

Amusing choice of cases, given that it makes a mockery of the double jeopardy concept in the first place.


Well, for starters, it would prevent defendants like Nelson from changing their defense at later trials to “Whoops, I did do it after all…”

Zev Steinhardt

You may very well have a point that two trials (whether they be civil vs. criminal or in two different jurisdictions) violate the concept of DJ. That, however, is not the issue I wish to debate. The issue that I’m looking to debate is to limit the ability of a defendant from later using his guilt of a crime for personal gain later on).

Zev Steinhardt

Well, there is a principle in law called “equitable estoppel,” and it generally prevents a party from gaining benefit from asserting a contrary position to one he earlier espoused.

But it wouldn’t apply to a criminal defendant who changed his story on retrial.

Trying someone for federal “civil rights violations” after he was acquitted in a state trial is a way of getting around the double jeopardy clause on a technicality and it violates the spirit of the law. It should not be legal.

OTOH, I think it would be reasonable to retry cases if substantial new evidence appears which was not available the first time around. This would have to be very severily limited though.

And it wouldn’t apply outside of a court setting either. However, there’s nothing to stop a newly-acquitted murderer from making a killing (pun intended) from a tell-all book in which he brags that he actually committed the murder.

Zev Steinhardt