An unusual coalition of liberal and conservative Supreme Court justices may be ready to stop the federal and state governments from prosecuting suspects twice for the same crime.
If that sounds like a no-brainer, think again: The “dual sovereignty” exception to the Fifth Amendment’s double jeopardy clause enabled Mississippi to convict Edgar Ray Killen of murdering three civil rights workers in 1964 after federal charges didn’t stick.
It helped the federal government convict two Los Angeles police officers for the notorious 1991 beating of Rodney King after a county jury acquitted four officers of nearly all charges.
It helped federal officials win a guilty plea last year from a South Carolina police officer for the 2015 shooting death of Walter Scott, an unarmed black man, after a state jury deadlocked.
And it may even help special counsel Robert Mueller’s probe of Russian interference in the 2016 election. If President Donald Trump pardons former campaign chairman Paul Manafort for federal tax and bank fraud violations, Mueller could set his sights on state courts.
Stack those anecdotes up against the Fifth Amendment’s bar on double trouble “for the same offence,” however, and most legal analysts agree the Constitution may come out on top at the Supreme Court.
Paul Cassell, a law professor at the University of Utah’s S.J. Quinney College of Law, says defenders of federal and state overlap can cite “public policy exigencies of the moment.” But a bar against double jeopardy, he says, represents “core values.”