Newspaper Article

Double Trials Mean Double Jeopardy

By Susan N. Herman. Susan N. Herman is a professor at Brooklyn Law School

1997

Overview

O.J. Simpson, in case you have been marooned on a desert island for the last several years, was acquitted by a criminal jury but found liable by a civil jury. Ditto subway shooter Bernhard Goetz, who got only a slap on the wrist in his criminal prosecution and then faced his victims in a civil trial. Former Los Angeles police officer Stacey Koon was acquitted on state charges of beating Rodney King and then convicted on federal charges of violating King's civil rights. And what about the multiple prosecutions of the Menendez brothers for the murder of their parents? Or accused Connecticut rapist Alex Kelly? Lawyers will give you suitably technical explanations for why each of these cases is an exception to the Constitution: mistrials after a hung jury (the Menendez brothers and Alex Kelly) don't count. Civil trials aren't covered by the double jeopardy clause because they don't put anyone in \"jeopardy\" for an \"offense.\" Koon and Nelson? The double jeopardy clause only applies if the two trials are for the \"same offense.\" Although based on the same conduct, the federal offenses charged against both Koon and Nelson were defined differently from the state offenses. And, in any event, successive state and federal prosecutions are legally excused under the most superbly technical exception: The \"dual sovereignty\" doctrine, which says it isn't double jeopardy if you have been tried for the same offense by two (or more) different jurisdictions.

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