Supreme Court refuses to change double jeopardy rule in case with implications for federal pardons

By Debra Cassens Weiss

Developing: The U.S. Supreme Court on Monday declined to change the long-standing rule that allows federal and state prosecutions for the same offense.

The Supreme Court ruled against Terance Gamble, who was charged with being a felon in possession of a firearm by both the federal government and the state of Alabama. NBC News and SCOTUSblog have early coverage.

Justice Samuel A. Alito Jr., wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh. Justices Ruth Bader Ginsburg and Neil M. Gorsuch filed dissenting opinions.

A contrary decision by the Supreme Court could have made it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun.

The case is Gamble v. United States.

via ABA Journal Daily News http://bit.ly/1jXmrxS

June 17, 2019 at 11:13AM

Justices Rule States and Feds Can Prosecute Someone for ‘Same Crime’

The U.S. Supreme Court on Monday refused to overrule a 170-year-old exception to the constitutional prohibition against prosecuting someone more than once for the same offense.

The exception to the Constitution’s double jeopardy clause, known as the “dual sovereignty doctrine,” allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.

“We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority in Gamble v. United States. “We see no reason to abandon the sovereign-specific reading of the phrase ‘same offence,’ from which the dual-sovereignty rule immediately follows.”

Alito said that fidelity to the double jeopardy clause’s text “does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.”

Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissents.

“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy,” Gorsuch wrote in his dissent.

Alito rejoined: “The United States is a federal republic; it is not, contrary to Justice Gorsuch’s suggestion, a unitary state like the United Kingdom.”

Ginsburg said in her dissent: “Different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble’s federal conviction.”

Terance Gamble is an Alabama man who was convicted and sentenced in state and federal prosecutions for the same crime: felon in possession of a firearm. Gamble, represented by Jones Day partner Louis Chaiten had asked the justices to overrule a doctrine known as the “separate sovereigns” exception to the Fifth Amendment’s double jeopardy clause.

Gamble’s case initially drew considerable attention because of its potential import for Special Counsel Robert Mueller III’s possible federal prosecutions of Russian interference in the 2016 election and involvement of the Trump campaign. Without the separate sovereigns exception, states would be barred from pursuing parallel prosecutions under their state laws.

The outcome of the case was being closely watched for its potential impact on state prosecutions of Paul Manafort, the former Trump campaign manager convicted in federal court in Washington and Virginia on various financial and lobbying crimes. Separately, state prosecutors have brought charges in New York.

During arguments in December, a number of justices appeared skeptical of Chaiten’s position. Chaiten emphasized that the separate sovereigns exception was inconsistent with the original meaning of the double jeopardy clause as well as its text and purpose.

Justice Brett Kavanaugh, himself a self-described originalist, said that argument conflicted with “another part of the original understanding—stare decisis” (standing by precedent). Justice Elena Kagan told Chaiten that his argument seemed “a little bit one note” and that he needed to offer more in order to persuade her to overrule the exception.

At oral argument, Ginsburg told Assistant to the Solicitor General Eric Feigin that the separate sovereigns doctrine has been “widely criticized” by federal judges and academics.

Feigin responded that many of those critical comments also recognized that “some exceptions are necessary, and that successive prosecutions and separate prosecutions are sometimes necessary to vindicate particular sovereign interests.”

Eliminating the exception, Feigin warned, would create a host of practical problems, including deterring cooperation, encouraging aggressive prosecutions, a race to the courthouse, and defendants trying to play each sovereign against the other.

Chaiten, in rebuttal, told the court that at least 20 states do not have the separate sovereigns exception, and at least 37 with respect to certain crimes. “It also seems to have worked out okay,” he said.

Texas Solicitor General Kyle Hawkins shared argument time with Feigin on behalf of a coalition of 36 states.

Read more:

Staring Down ‘Stare Decisis’: How to Ask SCOTUS to Overturn Precedent

Breyer Denounces Ruling That Strikes Precedent, Questions Which Cases Are Next

via Law.com – Newswire https://www.law.com/

June 17, 2019 at 03:36PM

The Supreme Court’s ‘alternative facts’ about drug-sniffing dogs

Last week, I wrote a post looking at how the criminal justice system operates in an alternate reality, one in which truth isn’t dictated by facts or data, but by precedent and case law. Today, I want to look at a case pending before the Supreme Court that is a great example of the problem.

At issue in Edstrom v. Minnesota is whether a drug dog’s sniff outside an apartment door constitutes a lawful search under the Fourth Amendment. If it does not, the police would be required to obtain a warrant before using a narcotics-detecting dog in that manner. If it does, then the police could take their dogs up and down apartment complexes the way they sometimes do with school lockers. Over at the legal analysis site Verdict, Cornell University professor Sherry Colb runs through what’s at stake, and offers some informed speculation on what the court may do.

For the purpose of this post, though, I want to focus on what’s missing from Colb’s analysis and, should the Supreme Court decide to hear the case, will almost certainly also be missing from oral arguments, the court’s ruling and most discussion of the case: that narcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip.

via Radley Balko https://wapo.st/1LG6QUD

February 4, 2019 at 09:48PM

High Court Likely to Allow Dual State, Federal Charges

A majority of Supreme Court justices sounded unlikely Thursday to overturn more than a century of doctrine that allows states and the federal government to prosecute someone for the same criminal conduct, reports the Washington Post. While it went unmentioned during oral arguments, the case has implications for any pardons that President Trump might issue for those prosecuted by special counsel Robert Mueller and convicted in federal court. Under the status quo, states might still be able to prosecute under their own laws those who receive a presidential pardon, which applies only to federal charges. 

Read more…

Supreme Court agrees to take up double jeopardy issue

The U.S. Supreme Court on Thursday agreed to consider whether to overturn a long-standing rule that allows federal and state prosecutions for the same offense.

If the Supreme Court overturns the precedent, it could make it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun, according to CNN Supreme Court analyst Stephen Vladeck, a University of Texas law professor.

Read more… 

In Drug Case, Supreme Court Holds That Unauthorized Rental Car Drivers Have Rights, Too

The US Supreme Court recently annulled a major search and seizure case around a rental car filled with heroin with a ruling that could impact the legal rights of Americans who may get stopped by police while driving a vehicle rented by another person. That case is U.S. v. Terence Byrd (#16-1371).

On May 14, Supreme Court Justices released their decision in Byrd’s case, announcing when the Fourth Amendment was applied to the evidence in the case that Terence Byrd had “reasonable expectation of privacy while driving a car rented by another party.”
Read more… 

Former Justice John Paul Stevens calls for repeal of the Second Amendment

Demonstrators who protested gun violence during the March For Our Lives rally last weekend should demand a repeal of the Second Amendment, according to retired Supreme Court Justice John Paul Stevens.

In a New York Times op-ed, Stevens said the Second Amendment was adopted amid a concern that a standing army might pose a threat to the security of the states.

“Today that concern is a relic of the 18th century,” Stevens said.

Read more…