Lawyers say dual protester charges unusual, excessive
Some local protesters charged with crimes during racial justice demonstrations May 30 find themselves in what their attorneys call an unusual situation: They face federal and state charges resulting from the same incidents.
The parallel charges present uncommon challenges for the defendants and their attorneys.
Brandon Benson, for instance, was held in jail on state charges including criminal mischief and institutional vandalism for longer than he normally would have been, as his attorney tried to make sure his release wouldn’t lead to his detainment on federal charges.
George Allen was on his way to a hearing in state court after he was charged with aggravated assault, riot, propulsion of missiles, reckless endangerment and criminal mischief. But he was intercepted by sheriff’s deputies and taken to the FBI building on the South Side, where officials told him he was being charged federally with obstruction of law enforcement during civil disorder.
And despite requests from Devin Montgomery’s attorney, federal prosecutors have refused to negotiate a plea bargain for Mr. Montgomery, who is charged with malicious destruction or damage by fire of a vehicle of an organization receiving federal financial assistance and with bank burglary. In state court, he faces charges including riot, disorderly conduct and
At first glance, it seems to put the defendants in double jeopardy — being prosecuted twice for the same crime. But such prosecutions are allowed under what is known as the dual sovereignty doctrine.
scattering rubbish.
The defendants’ attorneys said facing two prosecutions simultaneously is unnecessary in their view and perplexing for their clients.
At first glance, it seems to put the defendants in double jeopardy — being prosecuted twice for the same crime. But such prosecutions are allowed under what is known as the dual sovereignty doctrine.
“The dual sovereignty doctrine has been around since the mid- 1800s,” said Stuart Banner, a law professor at UCLA. “It means that there’s no violation of the Constitution’s double jeopardy clause for a person to be prosecuted more than once for the same conduct, so long as the prosecutions are by different governments.”
Last year, in a case known as Gamble v. United States, the U. S. Supreme Court again upheld the dual sovereignty doctrine. The case involved Terance Martez Gamble, who argued that he faced double jeopardy after he was prosecuted under both Alabama and federal laws for owning a gun as a felon.
In a 7- 2 opinion, the high court affirmed its long- held opinion that two offenses are not the same for double jeopardy purposes if “prosecuted by different sovereigns.”
“We have two criminal justice systems in America — a federal system and state systems in each state — and those two systems can operate independently of one another and without regard for what’s happening in each one,” said Paul Cassell, a professor of criminal law at the University of Utah.
Arguments in favor of dual sovereignty say the rule stops state governments from pre- empting federal authorities on issues that have important federal interest. For example, the Los Angeles
police officers accused of brutalizing Rodney King in 1991 were acquitted in state court, but they went on to be indicted in federal court, and two of the four officers were convicted on civil rights offenses.
On the other hand, Mr. Cassell argues against the dual sovereignty doctrine. To him, protection from double jeopardy has a “commonsense appeal to justice” that appears to be contradicted when two sovereigns can pursue charges related to the same conduct.
Giuseppe Rosselli, the attorney representing Mr. Allen in his state case, agrees. Mr. Rosselli now has to defend a client who is involved in separate jurisdictions, giving the legal system two opportunities to prosecute and potentially convict him.
It’s not that prosecutors are breaking the rules, Mr. Rosselli said.
“I just believe that it’s inconsistent with some basic principles that we hold and that every citizen is entitled to,” he said.
The defendants are charged with an array of crimes all stemming from their involvement in a May 30 protest. Mr. Benson is charged in federal court with “malicious destruction or damage by fire of a vehicle of an organization receiving federal financial assistance” after he allegedly set fire to a police cruiser. He is charged with institutional vandalism and criminal mischief on the state level.
In Mr. Montgomery’s case, some charges appear nearly identical, such as a federal charge of bank burglary alongside two state charges of burglary. Though the laws aren’t written exactly the same, the charges arise from what is essentially the same conduct.
Mr. Benson did not steal anything from the bank and didn’t seem to even get past the vestibule, his attorney,
Marco Attisano said. But the U. S attorney’s office said Mr. Montgomery and Mr. Benson entered the Dollar Bank on Smithfield Street “with the intent to take property, money or thing of value.”
At least nine other people face charges in both jurisdictions, with most cases dealing with allegations of property damage, vandalism or theft.
Michael Deriso, Mr. Montgomery’s attorney, said he believes in people’s rights to protest, but he added, the “looting in our city is not appropriate.” Mr. Deriso noted that he has had trouble negotiating with federal prosecutors, who refuse to waive the mandatory sentencing guidelines and make a plea deal for Mr. Montgomery.
“The federal side is troubling only to the extent that the U. S. attorney’s office is not willing to negotiate and use some kind of commonsense approach to resolving the case,” Mr. Deriso said.
Often, if federal and state charges against the same defendant appear redundant, state prosecutors will yield the case or hand it over to the federal government, the attorneys said.
Mike Manko, the spokesman for Allegheny County District Attorney Stephen A. Zappala Jr., said the office has no plans to hand the cases over, and he expressed confusion at the involvement of federal prosecutors.
“It remains unclear why the federal government chose to charge these cases only after state charges had already been filed,” Mr. Manko wrote in an email. “We will be proceeding with these prosecutions until disposition of the state charges.”
Feds aggressive
The U. S. Department of Justice this month sent memos to U. S. attorneys, urging them to aggressively pursue charges against demonstrators involved in violence and property damage, according to The Associated Press.
More than 300 people nationwide face federal charges connected to recent racial justice protests, according to the Justice Department. About 80 of the alleged crimes involve offenses relating to arson and explosives, while others include assaulting a law enforcement officer and civil disorder.
Despite such incidents, data from the U. S. Crisis Monitor project shows that more than 95% of demonstrations related to the Black Lives Matter movement have involved peaceful protesters.
In response to questions about the cases, the U. S. attorney’s office in Pittsburgh issued a statement that said, “The U. S. Department of Justice will continue to partner with the FBI, [ Bureau of Alcohol, Tobacco, Firearms and Explosives] and Pittsburgh Bureau of Police to aggressively investigate and prosecute violent crime committed under the guise of protest, as we have done since May 30th.
“Our goal — here and in every investigation — is to keep the people of Western Pennsylvania safe. Consistent with Department of Justice policy, the United States Attorney’s Office does not comment further on specific charging decisions, plea negotiations, and certain other aspects of pending cases.”
The dynamic between federal and state prosecutors is a “delicate dance,” Mr. Cassell, the Utah professor, said.
“Given that we’re in somewhat more turbulent times and unusual circumstances, it’s hard for that delicate dance to proceed smoothly,” he said.
Mick Stinelli: mstinelli@ post- gazette. com, 412- 263- 1869 and on Twitter: @ MickStinelli