Defining "Double Jeopardy"

I commented in a response to my last blog that the Virginia prosecutor's filing charges against Michael Vick for what are essentially the same offenses is double jeopardy though I am quite sure the legal community won't agree. I found the following definition of "double jeopardy" at lectlaw.com

DOUBLE JEOPARDY - Being tried twice for the same offense; prohibited by the 5th Amendment to the U.S. Constitution. '[T]he Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.' U.S. v. Halper, 490 U.S. 435, 440 (1989).

It is clear that the concept "same offense" is central to understanding double jeopardy.

As usual, the legal system provides itself with an "out."

Separate punishments in multiple criminal prosecution are constitutionally permissible, however, if the punishments are not based upon the same offenses. In Blockburger v. U.S., 284 U.S. 299 (1932), the Supreme Court held that punishment for two statutory offenses arising out of the same criminal act or transaction does not violate the Double Jeopardy Clause if 'each provision requires proof of an additional fact which the other does not.' Id. at 304. [same site]

This passage allows legislators to craft several "statutory offenses" out of the "same criminal act."

When O. J. Simpson went into the hotel room in Las Vegas and demanded "the return" of his memorabilia (I have my doubts that O. J. can own any property of this sort thanks to the civil case that went against him) at gun point, he committed "robbery" and thanks to the use of a gun, "armed robbery" as well. Is that one offense or two? If one gets fussy about this, the two offenses could be revised into the separate offenses of "robbery" and "use of a firearm during the commission of a crime" and be tried for both. In addition, he was charged with kidnapping. There were other offenses I'm sure such as conspiracy charges .

Normally, we think of kidnapping as grabbing someone and taking them to some other place where they are imprisoned and not allowed to leave. However, even simply not allowing someone to leave a place where they are already at also constitutes kidnapping. I suspect that there are places where the classic concept of kidnapping is separated into forcibly removing someone from some place and holding them at this new place. That way one can take "one crime" and turn it into two.

When one adds on the fact that victims can take alleged offenders to court for unlawfully ending someone's life, one can actually have a situation, as O. J. discovered, in which one might be found innocent of a criminal charge but guilty of essentially the same charge in a civil court case where loss of money, rather than incarceration is at issue. Could one have a case where one was found guilty in a criminal court, but innocent "of essentially the same charge" in a civil court. I believe that is possible.

Suppose that the O. J. jury decided, along with the judge presiding over the preliminary hearing, that the initial search at O. J.'s property which involved going over a wall without a search warrant was legal and found O. J. guilty of first degree murder. But, what if a civil court judge or jury or both in which the Goldman and Brown families were attempting to take all of O. J.'s money (not counting certain things like pensions) decided that that search was illegal and that all the evidence that was found there were fruit from the forbidden tree, as they say. They might find for O. J. in that circumstance.

I watched the Preliminary Hearing before going to England and mercifully missing the first half of the actual trial and it seemed to me that the cops testilied at that hearing and the judge should have thrown out all that evidence. That would not change the actual verdict, of course, but it would help people to understand why this predominately Black jury acted as it did. African-Americans generally don't much trust the police. I don't blame them.

The Race Card -- With Thanks to Donovan McNabb

Mr. McNabb is not having a great year. And he is taking heat. And this is because he is black. Or so he says.

I am so tired of the race card that I think it needs to be taken out of the deck. Jesse Jackson makes racist comments about me (telling us that Obama is "acting like he's white,") and my friends (the Hymies in NY). I am white and I presume that I act white most of the time. I didn't know that that was bad. Is Jackson in trouble for that? Of course not. Should he be? Of course. But he is too busy these days playing the race card on behalf of Blacks. When it uses it against a Black by equating him with people like me, then that must be okay.

I have blogged on this phenomenon in various discussions making the point that it is actually impossible to insult people at the top of any social pyramid by using some putative slur. Suppose you say, "Hey, Mike, you white son of a bitch, if you don't quit hitting on my wife, I am going to knock the snot out of you." I am not going to be insulted by your calling me "white." I probably won't even take offense at "son of a bitch." I have heard it too many times. The term "honkey" was brought out to try to offend people like me. You can see how successful that effort was.

The "Hymie" reference Jackson laid down on the city of New York did need some corrective work on Jackson's part. Jews don't much like being insulted, especially those in New York. Look at all the items on this page. You see denials that he used this anti-semitic slur. Then he bitched at journalists for hounding him about it. Then he admitted it. A hell of a preacher he is.

Back to Donovan. The man must be an idiot. Does he not know what position he plays? Does he not know what city he plays in? I will remind him. He is a quarterback and any quarterback who does not meet the standards the fans and media expect of him will be excoriated by the fans and media until they are hounded out of town. Rex Grossman catches constant grief in Chicago. And for good reason. What color is he, Donovan? Donovan McNabb plays in Philly, the most notorious city in the country for booing their own players. They think their football stadium is the Roman Colosseum. And they treat their gladiators in the same way the Romans did. Thumbs up if they played hard and smart. Thumbs down if they played badly or made stupid errors.

Bret Farve, who may go down as one of the top five quarterbacks in history (there will in a few years be too many for five to be the limiting number) has been criticized in recent years for throwing monumental numbers of interceptions. He is a football diety and even he has been booed in Green Bay. What color is he, Donovan? He is having a very good year this year. He deserves it.

When a Black multimillionaire bitches about people bitching about his play and says that part of that bitching is because he is black probably has had too many concussions and ought to retire before the brain damage is total. Does my saying that make me a racist? Probably. Please don't tell Jesse about my blog. I used to love McNabb and would have made him the first pick if I had had the first pick. Now I must see him as a pitiful whiner.

How important is language death?

There is a news story being distributed by the AP that laments the loss of languages. It claims

While there are an estimated 7,000 languages spoken around the world today, one of them dies out about every two weeks, according to linguistic experts struggling to save at least some of them.

The langugage of this sentence is interesting. Languages are said to "die out" and "linguistic experts" are "struggling to save at least some of them." The death of languages is being treated as if we are dealing with the death of people.

An assistant professor of linguistics at Swarthmore College says

"When we lose a language, we lose centuries of human thinking about time, seasons, sea creatures, reindeer, edible flowers, mathematics, landscapes, myths, music, the unknown and the everyday."

Here we see the death of languages as again being like the death of people. Maybe worse. Notice that should some culture die out overnight due to a terrible plague, it could be said that

With the loss of these people we have lost centuries of human thinking about time, seasons, sea creatures, reindeer, edible flowers, mathematics, landscapes, myths, music, the unknown and the everyday.

This would be a sensible thing to say because knowledge is possessed by people, not languages.

You can examine Prof. Harrison's bio at the link provided. It is pretty impressive, which came as a bit of a surprise to me since one does not tend to find outstanding linguists at small colleges. I suspect that all the linguistics departments in large universities are still too busy fighting theoretical battles to house someone like him. However interesting his bio is, I must still introduce some sanity to this issue.

When we lose a language we do not lose "centuries of human thinking" about anything. Human thinking is encapsulated in sentences/propositions, not vocabularies. The problem for Prof. Harrison's view is that if we have a written language that is no longer being spoken, as in the case of Latin, then we haven't actually lost all this knowledge. It or some of it would be recoverable from the written documents. But if the language is a spoken language only, only the death of the people who spoke it would entail the death of this knowledge.

Since when languages die, this normally involves a people's gradual movement to another language. The danger here is not the loss of a language per se but the loss of a culture for it is with the loss of a culture that we lose the knowledge that is specific to this culture. As the speakers of an Amerindian language move to English or Spanish instead of continuing with their native language, they may cease to communicate their cultural heritage to their children. If they do then, indeed, we have lost these things that Prof. Harrison laments the loss of. However, if they continue to transmit this heritage to their children, this knowledge is not lost even though the original language of these people may have been lost.

In my view, the real danger that the loss of a language represents is the possibility that examples of linguistic phenomena that might be critical to the development of linguistic theories may be lost. Consider the case of "click" languages, languages containing consonants that have two points of articulation with a vacuum existing in the space between these two points of articulation. When the closures are released a relatively loud popping or clicking sound results. I am pleased to say that while in graduate school I had a Black friend from S. Africa who lived in my apartment building and it was I who brought him to the attention to Professor Morris Halle, the primary phonologist at MIT. Morris was teaching phonology and lamented that no one he knew had had a chance to study click languages. I told him I knew a guy who spoke one and was instantly cheered but when asked what language he spoke I said I didn't know since what interested me was the political situation in S. Africa. That drew boos. As it turns out he spoke Xhosa. Nevertheless, I put him in touch with Morris.

If the Whites had managed to kill off all speakers of click languages, an event that would surprise no one I suspect if it had happened, then we linguists would not know of them and our phonological theories would be incomplete. That would be sad. The loss of a culture is always sad. But the loss of a language simpliciter is normally not as important as the loss of a living animal species such as whales.

Bush will lie about Iraq again and isn't even hiding his chicanry

Yahoo news has provided me a Reuter's story that says:

The assessment by Gen. David Petraeus could be a turning point in the conflict and is considered vital to any decisions by President George W. Bush on force levels as he faces demands from Democrats and some senior Republicans for U.S. troops to start leaving Iraq.

The problem with this is that Bush just went to Iraq to discuss ongoing events in Iraq and I imagine that he told Petraeus what he must say when he returns. Why else would Bush make such a trip -- to prove that his pilot knows where Iraq is?

In fact, Bush went to a military base in Iraq very far from Baghdad. You younger souls do not know this but there came a time when the only places that Pres. Lyndon Johnson could deliver his speeches was at military bases. These were the only places he could avoid the chant, "Hey, hey, LBJ. How many kids did you kill today?" Since the chanters couldn't easily get on army bases, this ploy was pretty successful. Of course, it further isolated an already isolated President.

President Bush is, I think, a man who, like Hitler, would prefer to bring the USA down around him (figuratively) rather than face a post-Presidential life of ignominy worse even than that of LBJ. He would be able to hob nob at country clubs, his ranch, and other protectable places. He is not going to be able to do as Carter, another unpopular President, did by becoming a statesman. Indeed, the idea is laughable.

President Clinton gads about in public because he knows that except for Right Wing Republicans, he is pretty well loved by the American people. Have I told you that a retired officer relative of mine has a joke that goes, "The two greatest Americans are named "Bill." Bill Gates and Bill Clinton." Pretty good choices. I wish I could believe BC's wife was anything like him but I don't.

So, back to the Petraeus Report, aka "The Petraeus Report as dictated to him by Geoprge W Bush." He will not be able to bring back bad news. Presidents hate bad news. This is what wrecked our Vietnam war effort. Johnson and then Nixon demanded the truth as they wanted to hear it. This will be what we get from Petraeus. Bush's ears will not burn with the truth about his failed enterprise. He will be able to smile and joke around. Then he will look stern and say that we need to keep force levels high bringing just a few troops home for we are on the verge of victory as George W Bush defines the term "victory." One National Guard unit will, it seems come home. They should never have been sent.

The American Exit from Iraq

No, I don't know when this will happen. I am pretty sure it can't happen under Bush. He is too vain to admit defeat. And Republicans have created an impossible situation for him should he wish to orchestrate a graceful exit because they have referred to this to a "surrender."

The Republicans seem to have perfected the the art of biting oneself in the butt. The poor Senator from Utah, who apparently somewhat successfully managed to stay in the closet for some years, is being bitten in the butt by the Republican prejudice against gays, a prejudice he himself adopted when "being a Republican" as opposed to "being a human" was required. Of course, the party has bitten itself in the butt as well. Democrats don't blink when a Democrat is outed or outs himself since they do not practice discrimination toward gays. In fact, the hypocrisy of the Republican Party in regard to gays is heightened because the Utah senator's proclivities were known to the leadership, just as were those of Sen. Foley.

In referring to Democratic proposals to end the war in Iraq, some Republicans have referred to this as a "surrender." They have also referred to this policy as a "cut and run" policy. Of course, for a withdrawal from Iraq to be a surrender, there would have to be someone to surrender to. Would it be the head of the government? Some Shiite cleric like Sadr? The head of the insurgency whomever he might be? Or would it be the top Al Queda guy if there is one? Without someone to hand your sword too, you can't surrender.

Cutting and running might be more relevant. I am guessing that what these Republicans have in mind is a case in which one might go crab fishing using a pretty big hunk of meat and one catches an alligator instead One might want to cut the line and run though it would be smarter, if one were really afraid, to leave the alligator attached to the line and run.

I am tired of two cowards like Bush and Cheney continuing to demand that our soldiers submit to extended stays in Iraq thereby increasing their chances of being killed or maimed or, should they survive, being psychologically damaged by the continued stress of combat against an enemy who hides in the shadows, a kind of stress neither Bush, flying around in National Guard planes when he wasn't AWOL, nor Cheney, studying at Wisconsin with his student deferments, during the Vietnam War could possibly understand.

Of course, if the Democrats can get their act together and defeat the Republican candidate for President and take both houses, then they must find some way to leave that doesn't expose them to Republican ridicule of a sort that might stick. If I knew how to do that I would tell you. We could, of course, adopt Sen. Aiken's proposal during the Vietnam War and declare victory and leave with our heads held high. A verbal declaration of victory is as close as we will come to victory, whatever that means.