Supreme Court seems likely to keep dou­ble jeop­ardy ex­cep­tion

The Sentinel-Record - - HOT SPRINGS/FYI - MARK SHER­MAN

WASH­ING­TON — The Supreme Court seemed likely Thurs­day to pre­serve a con­sti­tu­tional rule that al­lows state and fed­eral gov­ern­ments to pros­e­cute some­one for the same crime.

Sev­eral jus­tices ex­pressed con­cern about up­set­ting the long-stand­ing rule that pro­vides an ex­cep­tion to the Con­sti­tu­tion’s ban on try­ing some­one twice for the same of­fense, even as Jus­tice Ruth Bader Gins­burg de­scribed it as a “dou­ble whammy” for crim­i­nal de­fen­dants.

The court is con­sid­er­ing the case of fed­eral prison inmate Ter­ance Gam­ble. He was pros­e­cuted by Alabama and the fed­eral gov­ern­ment for hav­ing a gun af­ter an ear­lier con­vic­tion for rob­bery.

A rul­ing for Gam­ble could have a spillover ef­fect on the in­ves­ti­ga­tion into Rus­sian med­dling in the 2016 elec­tion. But that is­sue did not come up at all in Thurs­day’s ar­gu­ments.

In­stead, jus­tices fo­cused on the prac­ti­cal ef­fects that might re­sult from sid­ing with Gam­ble.

“Look at the door we’re open­ing up,” Jus­tice Stephen Breyer said, men­tion­ing fed­eral pros­e­cu­tions for crimes of racial vi­o­lence and do­mes­tic vi­o­lence against Na­tive Amer­i­can women that could be im­per­iled with a rul­ing for Gam­ble.

To that list, Jus­tice Depart­ment lawyer Eric Fei­gin added the mas­sacres in a Charleston church in 2015 and a Pitts­burgh syn­a­gogue in Oc­to­ber as ex­am­ples in which fed­eral mur­der charges might have to be dropped if Gam­ble were to pre­vail. Thirty-six states that in­clude Repub­li­can-led Texas and Demo­cratic-led New York also are on the Trump ad­min­is­tra­tion’s side.

The ses­sion pro­vided an op­por­tu­nity for new Jus­tice Brett Ka­vanaugh to talk about the im­por­tance of the court ad­her­ing to ear­lier rul­ings, an is­sue he ad­dressed re­peat­edly dur­ing his con­fir­ma­tion hear­ings as Demo­cratic sen­a­tors wor­ried Ka­vanaugh would vote to over­turn the Roe v. Wade abor­tion rights rul­ing.

A party ask­ing to over­turn an ear­lier rul­ing must “not just show it’s wrong, but that it’s griev­ously wrong, egre­giously wrong,” Ka­vanaugh said. Jus­tice Elena Ka­gan pointed out that close to 30 jus­tices have voted at some point to up­hold the ex­cep­tion Gam­ble wants to elim­i­nate.

Gam­ble’s case drew the court’s at­ten­tion af­ter Gins­burg and Jus­tice Clarence Thomas wrote in 2016 that the ex­cep­tion to pro­tec­tion from dou­ble jeop­ardy should be re­con­sid­ered. Jus­tice Neil Gor­such in­di­cated at ar­gu­ments that he might also be on Gam­ble’s side. At least one other jus­tice had to vote to hear the case.

One rea­son for tak­ing a fresh look, Gor­such said, is that “with the pro­lif­er­a­tion of fed­eral crimes…the gov­ern­ment’s abil­ity to seek a sec­ond con­vic­tion is a prob­lem.” Liberal and con­ser­va­tive groups urged the court to rein in suc­ces­sive pros­e­cu­tions for the same crime in large part be­cause of the marked growth in fed­eral crim­i­nal pros­e­cu­tions in re­cent decades.

Gam­ble was ar­rested in 2015 for pos­sess­ing a 9 mm hand­gun and faced state and fed­eral charges. He pleaded guilty in state court and tried to have the fed­eral charge dis­missed. When that failed, he pleaded guilty in fed­eral court as well, with the idea of mount­ing the con­sti­tu­tional chal­lenge that is now be­fore the Supreme Court.

Gam­ble is not sched­uled for re­lease from prison un­til 2020, nearly three years later than he would have been freed from con­vic­tion on state charges alone, his lawyer, Louis Chaiten, wrote in court pa­pers.

The rel­e­vant por­tion of the Con­sti­tu­tion’s Fifth Amend­ment says that no per­son shall “be sub­ject for the same of­fense to be twice put in jeop­ardy of life or limb.”

Chaiten dis­puted that a rul­ing for his client would carry harm­ful prac­ti­cal con­se­quences. He told the jus­tices that even a slight dif­fer­ence in the crime charged by state and fed­eral pros­e­cu­tors would be enough to elim­i­nate dou­ble jeop­ardy con­cerns.

He also dis­puted that fed­eral civil rights pros­e­cu­tions would be af­fected. Civil rights charges to fight crimes of ra-

cial vi­o­lence have been a key tool for fed­eral pros­e­cu­tors, es­pe­cially when South­ern ju­ries were un­will­ing to con­vict de­fen­dants. An­other high-pro­file ex­am­ple was the suc­cess­ful fed­eral pros­e­cu­tion of Los An­ge­les po­lice of­fi­cers who had been ac­quit­ted of state charges in the beat­ing of Rod­ney King.

Gam­ble’s is the rel­a­tively rare case that vi­o­lates the Con­sti­tu­tion, Chaiten said.

A rul­ing for Gam­ble could be rel­e­vant if Pres­i­dent Don­ald Trump were to par­don some­one im­pli­cated in spe­cial coun­sel Robert Mueller’s probe and a state wanted to pur­sue its own charges against that per­son.

A de­ci­sion in Gam­ble v. United States, 17-646, is ex­pected by late June.

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