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The Movie "Double Jeopardy" Gets Its Named Concept Completely Wrong

3/12/2014

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The movie thriller, "Double Jeopardy" gets the concept of double jeopardy completely wrong.  Here, I'll explain the basics of double jeopardy under the law and how the movie got it wrong.
Double Jeopardy

The Law of Double Jeopardy

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:
Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.
The Double Jeopardy Clause prevents a criminal defendant from being tried more than once by the same sovereign for the same offense.

First, double jeopardy only applies if the defendant was either convicted (found guilty) or acquitted (found not guilty) after the first trial.

Second, it must be the same sovereign that is trying the defendant both times.  Each government entity is a separate sovereign.  The federal government is separate from the states, and each state is a separate sovereign from the others.  Also a Native American tribal government is separate from the federal government and states.

A true crime example of this was shown during the trials of the LAPD Officers who were accused of beating Rodney King.  The four officers were initially charged by the state of California (through the Los Angeles County District Attorney's Office).  They were acquitted of the charges in state court.  The acquittals sparked the L.A. Riots.  The federal government then charged the four officers with civil rights violations based on the same incident.  This was not precluded by the Double Jeopardy Clause because the California and the federal government are two separate sovereigns.

The third requirement of double jeopardy is that the crimes charged in the first and second trials must be for the same offenses.  This is determined by the same elements test.  The elements of the crimes charged in the first and second cases are compared.  If there is an element that must be proven in each crime that is different from the other, than the crimes are not considered the same, and double jeopardy does not apply.

Double Jeopardy the Movie

*SPOILER ALERT
In the movie "Double Jeopardy," a married couple spend a weekend sailing.  The wife, Libby (Ashley Judd), wakes up to find blood all over herself and the boat.  Her husband, Nick, is missing.  She arrested when the coast guard spots her holding a bloody knife, which she found on the deck.

Libby is convicted of Nick's murder.  Her best friend agrees to care for her four-year-old son while Libby is in prison.  While on the phone with her son, Libby hears a door open in the background, and her son yells, "Daddy."  The phone disconnects.

Libby suspects Nick faked his death and framed her for murder.  Another inmate advises Libby that when she was paroled, she could kill Nick with impunity because she had already been convicted of his murder, and the Double Jeopardy Clause would prevent her from being charged again.  Libby does just that.  (Tommy Lee Jones plays Libby's parole officer who at first investigates her violations of parole, then helps her once he realizes her story may be true.)

Lesson number one:  Never take legal advice from a fellow prison inmate - or a movie - without first checking with a lawyer.

Libby's fellow inmate, and this movie, get the concept of double jeopardy wrong.  If someone is wrongly convicted of murder, they do not then have free license to kill that person if the person is found alive.  

Although both charged crimes are for the murder of Nick, they are two separate incidents.  The dates, facts, and evidence supporting each charge would be completely different.  Therefore, the charges are not for the same offense.  

Also, in the movie, the first framed murder occurred in Washington state.  The second murder occurred in Louisiana.  Therefore, double jeopardy would not bar the second prosecution because the two states are not the same sovereign. 

Because she was falsely convicted the first time, she could probably sue and recover some money to compensate her for her time in prison, but she would not be able to use that first conviction as a defense for her the second (valid) charges.

Check out the movie by clicking below:
Double Jeopardy
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Ineffective Assistance Of Counsel - How A Criminal Defendant Can Prove It

5/14/2013

3 Comments

 
OJ Simpson has claimed that his attorney for his Las Vegas robbery trial was ineffective. He has asserted two bases for his claim: 1) conflict of interest, and 2) failure to tell him about a plea offer.  This raises the question of what a criminal defendant must show for a claim of ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to the effective assistance of counsel. 
"In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense."

-U.S. Constitution, Amendment VI
That doesn't mean a defendant has the right to a perfect attorney or even a really good attorney.  It simply means a defendant has the right to an attorney who doesn't mess up in a way that is considered outside the professional norm.  Even then, the mess-up has to be so bad that it changes the outcome of the case.

Unlike a trial where the prosecution has the burden of proof to show a defendant is guilty, here it is the defendant's burden to prove that his attorney was ineffective. This is usually done through a petition for writ of habeas corpus. The defendant has to prove two things.

First, he must prove that his attorney acted outside the bounds of what is acceptable for a criminal defense attorney. This must be something more than a disagreement about tactics. It has to be something big. There are cases where even a drunk or sleeping attorney has not been held constitutionally ineffective.

Second, the defendant must prove that the attorney's mistake changed the outcome of the case. "If it wasn't for the mistake, I would have been acquitted." This is called prejudice.

Was OJ Denied the Right to the Effective Assistance of Counsel?

In OJ Simpson's case, he claims his attorney had a conflict of interest because he advised OJ that taking his memorabilia back was legal. A conflict of interest usually exists when an attorney has divided loyalties. Even if OJ's claim is true, it is unclear how that would have divided the attorney's loyalties. It is also unclear how that would have changed the outcome of the case. OJ would have to show his attorney's conflict caused him to be convicted when he would not have otherwise.

OJ's other claim is that his attorney did not tell him about a plea offer. a criminal defense attorney has a duty to communicate any plea offers to his client. The problem with this claim is that OJ would have to prove that he would have accepted the plea offer if he had known about it. Without that showing, there is no prejudice. No harm, no foul.  This is highly unlikely here. I suspect there is nothing that would have gotten OJ to plead guilty in this case.

It is generally very difficult for a criminal defendant to show that her attorney has been constitutionally ineffective. It does not appear that OJ will be able to make that showing.

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True Crime Book Illuminates the Italian Justice System in a High Profile Serial Killer Case Known as the Monster of Florence

5/31/2012

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High profile cases are generally not the best examples of a criminal justice system at work.  I would certainly not want someone judging the American criminal justice system on the basis of the O.J. Simpson and Casey Anthony trials, for example. 

With that caution, Italy's investigation into a serial killer known as the Monster of Florence (il Mostro di Firenze), as presented in a gripping true crime book, The Monster of Florence, by Douglas Preston and Mario Spezi, was nothing short of absurd.  
Although not well known in America, the Monster of Florence is one of the most famous serials killers known throughout the world.  The Monster preyed on young couples who used the hills surrounding Florence as an intimate escape. 

While the targeted couple was in the heat of passion in their car, the Monster would shoot the man, then the woman.  He would drag the woman from the car and cut out her vagina.  In later crimes he would also rip off the woman's left breast.

These horrific crimes, committed over a period of years, terrified people living in the Tuscany hills, and created a frenzy to find the killer or killers.

The book follows the decades of investigation and prosecution of several people accused of being the Monster, or being someone criminally associated with the Monster.  The investigators' theories evolve from a lone serial killer to a family of killers to a vast satanic consipracy involving most of Florence's upper class.  Even the book's authors were swept up in the investigation.

The authors convincingly present their own theory of the crimes and suspect.  My one complaint is that I wished the book had explained a little more was the Italian criminal justice system.  From the bits and pieces discussed, it appears the Italian system is very different from the U.S. system in some key respects (the prosecutor is a judge, a trial is heard by a panel of judges not lay jurors, an appeals court can hear new evidence). 

It would have been interesting to have a little more background on that.  Otherwise, I found the book to be a fascinating case study.  It's a must-read for any fan of true crime.  Despite the complexity of the story, it was a quick and enjoyable read.

There were also some interesting parallels for anyone who followed the Amanda Knox story (American exchange student Amanda Knox and her Italian boyfriend were convicted of murdering her roommate Meredith Kercher in Perugia, Italy).  The main prosecutor who believed in and investigated the satanic consipracy theories of the Monster killings was also Amanda Knox's prosecutor, and he advanced similar theories in that case.

For fans of The Silence of the Lambs (my favorite serial killer book and movie ever) and Hanibal, author Thomas Harris apparently followed the Monster investigations and used the case as inspiration for his books (click the images to order from Amazon). 
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Life "of Leisure" on Death Row?

1/25/2012

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Danny Robbie Hembree is on death row at Central Prison in Raleigh, N.C.  In an editorial letter he sent to his hometown paper, the Gaston Gazette, he describes himself as "a gentleman of lesiure [sic], watching color TV in the A.C., reading, taking naps at will, eating three well balanced meals a day." 

Hembree taunts his readers with the costs of his trial and upkeep, as well as the relative comfort in which he lives on death row.  He explains that he has access to "free medical care 24/7" at a new 55 million dollar facility.

Humbree, 50, was convicted of murdering two North Carolina women and a 17-year-old girl.  Like many states, no one has been executed in North Carolina since 2006 because of legal challenges over lethal injections and whether a physician must oversee executions.

"Is the public aware that the chances of my lawful murder taking place in the next 20 years if ever are very slim?" Hembree asked. 

Hembree states that he "is ready to except [sic] his unjust punishment and face God Almighty with a clear conscience."  He taunts, "Kill me if you can, suckers. Ha! Ha! Ha!"

You can see Henbree's handwritten letter here.

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Today in Crime History

1/25/2012

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A few notable crime-related events took place on this day, January 25, in history:

2006:  A Mexican professional wrestler, Juana Barraza, was arrested in conjunction with the serial killingof at least 10 elderly women

1996:  Billy Bailey was the last person to be hanged as a method of execution in the United States

1993:  Five people were shot outside the CIA headquarters in Langley, Virginia by a Muslim extremist, resulting in two dead and three wounded

1971:  Charles Manson and three female co-defendants were found guilty of the 1969 murders of actress Sharon Tate and Leno and Rosemary LaBianca

1787:  American Daniel Shays led a rebellion against the federal government to protest debtor's prisons, for which he was later convicted of treason

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When Is Cutting Someone's Beard A Federal Hate Crime With Life Imprisonment?

12/21/2011

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The U.S. Justice Department indicted 12 members of an Amish sect for shaving the hair and beards of non-sect Amish people.  A grand jury indicted the Amish sect's leader, Samuel Mullet, Sr., along with 11 other followers.

The defendants were charged with violations of the federal hate crime law (the Matthew Shepard-James Byrd Hate Crimes Prevention Act), which carries a potential life sentence.  The defendants were also charged with obstruction of justice.

The alleged crimes were the result of religious disputes with other Ohio Amish people.  The defendants are accused of planning and carrying out assaults "on their perceived religious enemies." 

According to authorities, "The assaults all entailed using scissors and battery-powered clippers to forcibly cut or shave the beard hair of the male victims and the head hair of the female victims.  During each assault, the defendants restrained and held down the victims."

After the assaults, some of the defendants are accused of concealing or attempting to conceal evidence including a camera, photographs, "and an over-the-counter medication that was allegedly placed in the drink of one of the assault victims."

The way that Amish men wear their beards and Amish women wear their hair are symbols of their faith.  That's why someone cutting their hair and beards can be considered a hate crime.

"Every American has the right to worship in the manner of his or her choosing without fear of violent interference," said Thomas Perez, assistant attorney general for the Department of Justice's Civil Rights Division.

UPDATE 2/12/13:  Mullet and 15 of his followers were found guilty in connection with the attacks.  Mullet was sentenced to 15 years in federal prison.  Four of the followers were sentenced to seven years in prison, three were sentenced to five years, two were sentenced to two years, and six received sentences of a year and a day.

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Inquiry of Prosecutor Sought after Man Exonerated after 25 Years in Prison

12/20/2011

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Michael Morton, 57, was exonerated after spending 25 years in a Texas prison for killing his wife.  His attorneys are now seeking a "court of inquiry" to examine whether the prosecutor committed misconduct by withholding exculpatory evidence.

If approved, a judge would be selected to preside over the inquiry.  A district or county attorney would assist examining witnesses and evidence.

Prosecutorial misconduct (specifically, prosecutors withholding evidence) is a common factor in cases where the defendant is later exonerated.

Read about a similar story by entering my free book giveaway- Chasing Justice:  My Story of Freeing Myself After Two Decades on Death Row for a Crime I Didn't Commit" by Kerry Max Cook.

Or buy that book:
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Penn State Football Coach Arrested on Charges from Two New Victims

12/7/2011

1 Comment

 
Jerry Sandusky, the former Penn State Football Coach arrested last month for molesting eight young boys, was rearrested today.  He was charged with more counts involving two victims who came to light after his initial arrest.

It is common in cases of child molestation that victims do not report their abuse until other similar allegations surface. 

The facts alleged by these new victims appear to be similar to those alleged by the first eight victims.  The victims were all young boys who met Sandusky through his charity, The Second Mile.  Sandusky gave the boys gifts and took them to football games.  He began physically touching the boys, which eventually became sexual assaults. 

These kinds of similiarities tend to reinforce the truth of each of the allegations.  If specific enough, they can be classified as the defendant's modus operandi, or M.O.
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Film's Powerful Impact on a Real-Life Afghan Crime Story

12/2/2011

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Afghan President Hamid Karzai pardoned an Afghan woman serving a 12-year prison sentence for having sex out of wedlock after she was raped by a cousin.  A judge had earlier offered to release her if she agreed to marry the rapist, but she refused.

The woman's story was highlighted in a European Union documentary on Afghan women jailed for so-called "moral crimes."  However, the European Union blocked release of the film because of fears the women featured in the film would be in danger if it were shown.

Even though the documentary film was blocked, the Afghan woman's case drew international attention to the plight of many Afghan women 10 years after the overthrow of the Taliban.  Half of the women in Afghan jails are victims of rape or domestic violence.

The woman's attack (and crime) was only brought to light because of the resultant pregnancy.  She had the baby in prison and began raising her in prison, which is common for women inprisoned in Afghanistan.

More than 5,000 people recently signed a petition urging Afghan President Karzai to release the woman.

On Thursday, Karzai's office said in a statement that Karzai had agreed to pardon the 21-year-old woman.  Initial reports were that the pardon was based on the woman finally agreeing to marry her attacker.  Today, however, the woman's attorney stated that the woman would not have to marry her attacker as a condition to being freed.
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Oregon Governor Stops Executions and Suspends the Death Penalty

11/23/2011

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Oregon Governor John Kitzhaber has declared a moratorium on the death penalty in Oregon.  Oregon joins 16 other states and the District of Columbia in its removal of the death penalty as a sentencing option.

Oregon Governor Kitzhaber said, "I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families, and reflects Oregon values.  I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor."

Governor Kitzhaber's decision stops the execution of twice-convicted murderer, Gary Haugen, which was scheduled for December 6, 2011.  Haugen had waived his appeals.

Governor Kitzhaber said his decision was made "[b]oth because of my own deep personal convictions about capital punishment and also because in practice, Oregon has an expensive and unworkable system that fails to meet basic standards of justice."

Governor Kitzhaber noted his decision was not based on compassion for Haugen or other death row inmates.  He pointed out that the death penalty is imposed unfairly, with people who have committed similar crimes to those on death row serving life sentences.
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    Blythe Leszkay is a successful and experienced criminal attorney, criminal law professor, and consultant to writers and filmmakers.  See About Me.  This blog is intended to answer common criminal law questions, dispel misconceptions, and explain misunderstood criminal law concepts.  It is also a place to discuss any crime or law related topics of interest.  Contact me for a free initial consultation on your film or writing project.

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