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.

The legal concept of double jeopardy comes from the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution, which states:

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.

*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:

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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. 

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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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). 

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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