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Bruce Bialosky

A Terrible Court Ruling

The U.S. Supreme Court made a ruling a couple weeks ago, supported by 170 years of precedent with support from both the liberal and conservative wings of the court and a 7-2 vote. In Gamble v. U.S., our Supreme Court validated the right for the government to put a criminal defendant in double jeopardy. There has been no ruling by the court that is more offensive than this ruling.

The Justices made this ruling despite the fact that the Fifth Amendment of our Constitution specifically prohibits such action with the language “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Why did the current Justices validate such poor judgment that had been adjudicated by their predecessors and reinforced previously? That is the mystery to be solved.

If one is not a legal expert but wants a better understanding, the best source today is Andrew McCarthy. Sure enough, McCarthy wrote about this case and he is dead wrong, a rare occurrence indeed.

He stated in his column that the principle definition of logic behind the decision was offered by the author of the majority decision, Justice Samuel Alito. McCarthy wrote “Writing for the Gamble majority, Justice Samuel Alito explained that the extent of this protection boils down to what an offense is. At the time of the Fifth Amendment’s adoption, an offense was understood to be a wrong defined under the law of a particular sovereign; therefore, if there are two sovereigns, and the same act violates the laws of each, there are two offenses. A prosecution by one government that ends in a conviction or acquittal does not protect the defendant from being charged by a different sovereign for the same crime.’

That folks defines the difference between legal minds and the rest of us. Picture yourself being charged for a crime and you are tried under the laws of your state. You are found innocent. You think you are home free after a torturous and financially straining period in your life. Then you receive a knock on your door and it is the FBI. You are arrested and told you are being tried on the same charges by the Feds. Is that fair? Is that right? Is that American? Absolutely not.

McCarthy came to his decision through his experience as a U.S. Attorney. He writes proudly of his conviction of the murderer of Meir Kahane in the 1990’s after a state jury acquitted the murderer. He writes “Prosecutions in the dual-sovereignty situation are rare. The Justice Department’s default position is that once state prosecutors have had a full and fair shot at convicting someone, that should usually be the end of the matter.”

He educates us that in reality the reverse is even more difficult. McCarthy states, “There are even higher hurdles in the reverse scenario. Some states, such as New York, have equitable double jeopardy written into their law. When I was a federal prosecutor in Manhattan, if we and the FBI or DEA got into a turf battle over a case with the district attorneys and the NYPD, we always held the trump card: If the feds indicted first, New York state law would bar the district attorney from proceeding with a prosecution.”

That was then and this is now. Americans should never be exposed to double jeopardy because of a whim of a government attorney’s custom to potentially not try the citizen for a second time on the same charge.

A perfect example of why that should not be done is the current case of Paul Manafort. Whether you are a fan of Manafort or not (I am not) he was convicted on eight counts by a federal jury. He was sentenced to 47 months in prison. Unfortunately, many people don’t like Manafort or more accurately the man who formerly engaged him, President Trump. Some people are vindictive.

We thought that the position of AG in NY was in bad hands when it was occupied by Eliot Spitzer, then Andrew Cuomo and last Eric Schneiderman. Each of these individuals used the office to either engineer criminal activity or grandstand for future political purposes at the expense of the residents of New York. The new Attorney General, Leticia James, makes them look civil. She is trying Manafort on the sheer rationale that Trump might pardon Manafort in the future. If Manafort is convicted in NY, Trump cannot pardon those charges. So much for McCarthy’s statement that NY has equitable double jeopardy.

Even though he has not stated he would pursue such a case, Xavier Becerra, the AG in California, is even a smaller, more vindictive human being. He lives to sue Trump. He has sued the Trump Administration about 50 times, making it look like the only work he does is sue the federal government. If the vicious James fails to convict Manafort (an unlikely scenario since a jury has already found him guilty), what’s to say Becerra would not gin up something about which to try him? Or any other Trump Administration personnel who has either plead guilty to something or been vindicated but now subject to new charges because of this Supreme Court ruling?

Our current court had an opportunity to overturn a grievously bizarre interpretation of our Constitution and the black and white protection of an American being tried twice for the same charge no matter which level of government tried them. They could have told law enforcement to hash out things — either you can try the person at the federal level or the state level — but not both. Take your pick, but you must pick only one. They failed.

It is obvious that arguing against this could be called tilting at windmills. Every once in a while, it is good for the soul to do such and this is one time that qualifies.