- by Woody Box
Double Jeopardy is the customary term in US law for the ancient and universal principle that a person may not be held accountable twice for the same crime. Someone who has been convicted or acquitted from a certain offense may not be legally pursued for this particular offense again, thus providing him with a kind of immunity.
This article argues that the clause might in fact be a main reason for the surprisingly passive and heavily criticized defense strategy at the Tsarnaev trial. As is known, the defense lawyers admitted his guilt from the beginning, hardly contested the prosecution's weak evidence in the guilt phase and presented little evidence of their own. Part of this strategy was surely, as Jane24 has put it, to give the government enough rope to hang itself - i.e. let them present their (possibly tainted) evidence first before reacting with counter-evidence.
But there's more to it. As matters stand, Dzhokhar's bag didn't contain the shrapnel-filled pressure cooker that hurt the people at the second bomb site. It was most probably filled with low explosive powder from the fireworks which the brothers had purchased. This kind of smoke bomb is rather harmless, but still could be used by the prosecution to go after Dzhokhar. Several points of the 30 charges are applicable to both a pressure cooker bomb and a smoke bomb, for instance:
- Bombing of a place of public use (count #9)
- Use or possession of a firearm (count #10)
- Malicious destruction of property by means of an explosive (count #14)
Dzhokhar is now in jeopardy and thereby "immune" against all 30 charges. If the defense manages to show in the appellate process that his bag did not contain a pressure cooker but only the fireworks powder, the prosecution is prohibited from pursuing him for planting a smoke bomb - which it would certainly be eager to do - due to Double Jeopardy. Given the draconic sentences for his friends, there's little doubt they would charge him for ten years or more, implying some involvement in the real bombing.
Certain conditions have to be fulfilled for a defendant in order to be protected by the Double Jeopardy rule. The defendant must have been attached to jeopardy - in a jury trial this is when the jury is sworn - and the jeopardy must have been terminated which occurs (1) after an acquittal, (2) after an dismissal of a charge, (3) after a mistrial not caused by the defendant, or (4) on appeal after conviction (Source). Obviously this applies to Dzhokhar, and it might explain the defense's passivity in the guilt phase. If they would have challenged the prosecution's version before the conviction, he would not yet have been protected by Double Jeopardy and the prosecution could have issued an altered indictment with regard to the smoke bomb.
If the appellate court overturns a jury's guilty verdict due to procedural trial error, the defendant may still be re-prosecuted in a new trial. However, if the verdict is overturned for insufficient evidence, Double Jeopardy applies and the defendant is acquitted stante pede. (Source) The reasoning is that the prosecution has the duty to make a watertight case in the original trial. If they fail to do this, the flaw cannot be offloaded on to the defendant later.
By filing a motion for judgment notwithstanding the verdict, the Tsarnaev defense has argued with insufficient evidence. So if they manage to convince the appellate court to overturn the verdict and acquit him, Double Jepoardy prohibits the prosecution from pursuing a new trial and barrs it from presenting any new evidence, if only to indict Dzhokhar for planting a smoke bomb.
Burks vs. United States is a good reference. The defendant filed a motion for acquittal before the jury's verdict (as in Dzhokhar's case); the jury found him guilty as charged, and thereafter his motion for a new trial on the ground that the evidence was insufficient to support the verdict was denied (as in Dzhokhar's case). The Court of Appeals reversed the conviction and asked the District Court to proceed either with a directed acquittal or a new trial. In the end, the Supreme Court remanded Burks to the District Court for a judgment of acquittal because the prosecution "could not have another opportunity to convict after it had been given a full and fair opportunity to do so".
There is a caveat, however. If one single deed or crime amounts to several offenses, the US jurisdiction has developed the so-called Blockburger test to determine if the defendant is protected by Double Jeopardy.
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.So if the Tsarnaev prosecutors have to conceed that he didn't plant the pressure cooker bomb, they could still pursue him for planting a smoke bomb if they present a proof for the latter offense that was not required for the former. This seems difficult, however, because the required evidence for both - video footage, eyewitness statements - is exactly the same.
In this context it is worth to note that one of the rare witnesses called by the defense, fingerprint expert Elaine Graff, was extensively questioned about the nature of the bomb and whether Dzhokhar's fingerprints were found on its components (they were not). Jane24 has noted a striking engagement of the defendant:
During Timothy Watkin's questioning of this witness I twice observed Dzhokhar Tsarnaev writing and passing notes to a member of his legal team. These notes were taken to Watkins who paused to read them. Throughout the day the defendant seemed more focused on proceedings than he has appeared to be previously.
The defense did not contest the Forum video or one of the more questionable witness statements, yet they were keen to exonerate Dzhokhar from the bomb building action. This might indicate that they are not worried to be able to disprove the video evidence, but anticipate that Dzhokhar's involvement in the making of the smoke bombs poses a potential problem in the future.
Another caveat is that Double Jeopardy does not barr a state from indicting someone who was already acquitted at a Federal court (and vice versa) under the "Dual sovereignty doctrine". District Attorney Martha Ryan amazed the public when she announced that she would pursue Dzhokhar on the state level for the murder of Sean Collier after a potential acquittal in the appellate process. This step caused confusion in the media, some even questioning Ryan's mental health. The explanation making most sense here is that Ryan received a hint that Dzhokhar might be acquitted without any chance to re-prosecute him on a federal level, together with the assurance that even if his bag was not the pressure cooker bomb, he must have been "involved" in the bombing. Her rushing ahead looks like a message to the defense that she doesn't want to let him off the hook.
There's no indication however that he knew of the existence of the pressure cooker bomb, and the fact that he was pretty close to it when it exploded - as emphasized multiple times by the defense - seems to prove the contrary. All in all, the decision of the Appellate Court has the potential for a huge surprise.
The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. - See more at: http://criminal.findlaw.com/criminal-rights/double-jeopardy-what-constitutes-the-same-offense.html#sthash.DEIkYahE.dpuf
The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. - See more at: http://criminal.findlaw.com/criminal-rights/double-jeopardy-what-constitutes-the-same-offense.html#sthash.DEIkYahE.dpuf All in all, the decision of the Appellate Court has the potential for a huge surprise.