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The Double Jeopardy Clause does not prevent prosecuting Darren Wilson for murder

Solidarity rally and march for Michael Brown in response to the Furguson grand jury decision

Solidarity rally and march for Michael Brown in response to the Ferguson grand jury decision

The Double Jeopardy Clause does not prevent prosecuting Darren Wilson for the murder of Michael Brown.

The Double Jeopardy Clause is in the Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The basic purpose of the clause is to prevent a prosecutor from retrying a person who has been found not guilty. To understand double jeopardy, one has to know when jeopardy begins and when it ends. Note that the clause does not prohibit jeopardy; it prohibits double jeopardy.

When jeopardy begins

As a matter of law, jeopardy (i.e., the possibility of conviction) does not attach (i.e., begin or start) until the jury has been selected and sworn in a jury trial. It attaches in a bench trial when the first witness has been sworn.

Note: Jeopardy does not attach when a person is charged with a crime.

When jeopardy ends

Jeopardy ends when a person has been found guilty or not guilty of a crime.

What happens when someone appeals a conviction and sentence

If the conviction is reversed by an appellate court, the conviction is vacated or set aside and the case is remanded (i.e., sent back) to the trial court for further proceedings. This means the defendant returns to being in jeopardy again. However, it isn’t double jeopardy because the first state of being in jeopardy has not concluded. The prosecution has the option of dismissing the case, retrying it, or resolving it with a plea bargain.

Note that there is no limit to the number of times a person can be retried for the same offense, so long as an appeal from the result in each trial results in the conviction being set aside and the case remanded for a new trial.

What about a second prosecution by the federal government after an acquittal in state court?

The Double Jeopardy Clause does not prevent a subsequent prosecution for the same offense by a different sovereign. A good example is drug offenses, although for reasons of comity and proper allocation of resources, federal and state prosecutors have established guidelines generally based on drug quantities to avoid double prosecutions. The feds prosecute the cases that involve larger quantities of drugs with the states handling the lesser quantities.

Can Wilson be prosecuted for killing Michael Brown?

Yes, because jeopardy has not attached yet. In addition, the grand jury’s decision not to charge him does not prevent a new grand jury from indicting him. There is no limit to the number of times a prosecutor can summon a new grand jury to indict someone.

Although there are statutes of limitation that limit the time within which a charge must be filed, which for felonies is usually within three years of the date the crime was committed, there is no statute of limitations for murder.

In addition, a prosecutor could bypass the grand jury and charge Wilson with murder by filing a complaint or prosecutor’s information.

Therefore, no legal barrier except probable cause prevents prosecuting Wilson for murder.

With or without Witness 40, there never has been a legitimate or credible argument against probable cause (i.e., reasonable grounds) to believe Wilson murdered Brown.

Nothing except racism and an obvious conflict of interest prevents McCulloch from prosecuting Wilson for murder.

With the total collapse of Witness 40’s credibility (see my article yesterday), and the strong probability that the prosecution knew before they put her on the stand that she had not witnessed the shooting, I firmly believe the investigation of the Michael Brown shooting must now expand to include an investigation to determine if McCulloch, his prosecution team and the police officers who testified before the grand jury conspired to obstruct justice by concealing the commission of a murder and suborning perjury by Witness 40.

Consider, for example, that Kathy Alizadeh, an assistant prosecutor informed the jury before Wilson testified that he could lawfully shoot and kill a fleeing felon. She also handed out a copy of a Missouri statute that contained that language. However, she did not tell them that the statute was declared unconstitutional in 1985 and replaced with language that limits a police officer’s use of deadly force to stop a suspect fleeing from the commission of a violent felony who reasonably constitutes a danger to others. Although she later provided the grand jury with a corrected version of the statute she did not expressly point out the difference between the two.

The difference was significant because the police dispatcher broadcast a theft of some cigars, which is a misdemeanor shoplift and not a violent felony. In addition, Wilson told his supervisor at the scene of the shooting that he had not heard the dispatcher’s broadcast. Finally, Wilson could not have reasonably believed Brown was a danger to him or to others since Brown was unarmed and had stopped, turned around and raised his hands in the universal symbol of surrender. There simply is no excuse for a professional prosecutor to give an invalid instruction.

Missouri Governor Jay Nixon must take command of this deteriorating situation by appointing a special prosecutor to prosecute Darren Wilson for murder as well as to investigate Robert McCulloch, his assistant prosecutors and police for  conspiracy to obstruct justice and suborn perjury.

Anything less is not acceptable.

Anything less and there will be no peace.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.