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.