“Lawmakers should act now to close New York’s Double Jeopardy loophole,” wrote Barbara D. Underwood, Attorney General for the State of New York, in a press release (05-31-18). Read the NY AG’s letter to the state legislature. [Underwood replaced NY AG Eric T. Schneiderman, who resigned].
Loophole? Could that be political?
“By pardoning Dinesh D’Souza, President Trump is undermining the rule of law,” explained Underwood in the press release, and her tweet.
But that’s your opinion, not the rule of law.
The Bill of Rights
The Articles of Confederation, by design, severely limited interaction among the states, and its federal government. After proposed changes, the consensus was to replace it with a new constitution. Not so fast: The sovereign states could ratify the constitution only with a caveat: Congress must draft amendments to further limit the federal government’s power over the states, and the people. These amendments became known as the Bill of Rights.
Prohibition against Double Jeopardy in federal and state constitutions
“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” – Fifth Amendment to the U.S. Constitution.
American jurisprudence has construed the 14th Amendment to incorporate federal law and rights to the states. Surprisingly, courts have been reluctant to apply the Fifth Amendment to the states, and finally acknowledged the application in the 1969 case of Benton v. Maryland: “[T]he double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal of our constitutional heritage … Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply to both the State and Federal Governments.” [395 U.S. 784, 795 (1969)(citation omitted) See Congressional Research Service’s Analysis of the Fifth Amendment, p. 1481].
The prohibition against Double Jeopardy is included in state constitutions, such as Art. I, §6 of the Constitution of the State of New York: “No person shall be put in jeopardy for the same offense.”
Federal and state prosecutors “forum shop”
Under Federalism, an act could be prohibited by federal and states’ constitutions and criminal statutes. Double Jeopardy applies to the same charges within the same level of court. Technically, based on the same act, a defendant could be tried for similar charges in federal and state courts. That rarely occurs for practical reasons of expense and logistics. Instead, federal and state prosecutors may try to “forum shop” to select which level of court is preferred for likelihood of a more severe penalty, or demographics (conservative or liberal) of a jury or judge.
Do exceptions “swallow the rule?”
Exceptions are created by court procedure or state legislatures. Yet, as reported by New York’s Attorney General in a letter: “The problem arises under Article 40 of the Criminal Procedure Law. Under that law, jeopardy attaches when a defendant pleads guilty, or, if the defendant proceeds to a jury trial, the moment the jury is sworn. If any of those steps occur in a federal prosecution, then a subsequent prosecution for state crimes ‘based upon the same act or criminal transaction’ cannot proceed, unless an exception applies. New York’s law provides exceptions when a court nullifies a prior criminal proceeding (such as when an appeals court vacates a conviction), or even when a federal court overturns a federal conviction because the prosecution failed to establish an element of the crime that is not an element of the New York crime.” [citations omitted].
The Presidential Pardon
The President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Art. II, section 2, U.S. Constitution.
By implication, The President does not have the authority to pardon state crimes.
So what worries New York’s Attorney General?
Double Jeopardy has 12 exceptions under New York law. “But there is no parallel exception for when the President effectively nullifies a federal criminal prosecution via pardon,” wrote New York’s Attorney General in a letter. “Thus, if a federal defendant pleads guilty to a federal crime, or if a jury is sworn in a federal criminal trial against that defendant, and then the President pardons that individual, this New York statute could be invoked to argue that a subsequent state prosecution is barred. Simply put, a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law.”
Cut the legalese, what does this mean?
What every lawyer and judge knows, but will not admit in public: Justice is perception, not facts or results. Which side has the better lawyer? Who knows how to “play the system?” Remember, federal and state prosecutors “forum shop” for a conviction. Don’t like the result in a state court, then file charges in federal court, and vice versa.
What does this politically mean?
State and federal prosecutors may file charges for political expediency, but at risk of pardons respectively by a governor of a state, or the President of the United States.
Liberals expected Hillary Clinton to be elected President, who would not pardon political convictions of conservatives.
Alas, President Donald Trump has the power to pardon.
The liberal New York Attorney General in her tweet expresses the horror: “First it was Sheriff Arpaio. Then it was Scooter Libby. Now it’s Dinesh D’Souza. We can’t afford to wait to see who will be next. Lawmakers must act now to close New York’s Double Jeopardy loophole.”
New York’s legislature seeks to create a new exception in this bill.
In other words, New York wants another “bite at the apple” to convict political enemies.
Liberals’ goal: exceptions to Double Jeopardy applied to the First Amendment
In the National Review, Andrew McCarthy explains: “From his first days in office, President Obama has forged a collaborative relationship with the Organization of Islamic Cooperation. The OIC is the largest United Nations bloc. It includes 56 nations with significant Muslim populations plus the Palestinian Authority (which these Muslim nations regard as a fellow sovereign). Throughout her four years as Secretary of State, Hillary Clinton was Obama’s point-person in the administration’s collusion with the OIC. Among the most significant ‘achievements’ of this partnership – and, from a constitutional perspective, the most appalling one – has been the adoption of Resolution 16/18. In blatant violation of the First Amendment, this provision calls on Western governments to outlaw any speech that ‘constitutes incitement to discrimination, hostility or violence’ toward religion, on the rationale that such speech could provoke ‘religious hatred.’”
Liberal educators claim “free speech” does not apply to undefined “disingenuous representation.” Liberal students claim conservative speech is hate speech. In our politically correct environment, in which snowflakes believe in a right to avoid being offended including criticism of religion, consider these ramifications:
If Hillary Clinton, or any liberal candidate, could become President, the Executive branch – the Department of Justice; Health and Human Services; or any bureaucracy – could promulgate regulations consistent with U.N. Resolution 16/18, effectively Sharia law.
If U.N. Resolution 16/18 could evolve into a treaty, and it is ratified by a liberal U.S. Senate. If so, that treaty could nullify the First Amendment of the Constitution of the United States.
If a liberal U.S. Congress and a liberal U.S. President could enact federal laws consistent with U.N. Resolution 16/18, effectively Sharia law.
If liberal state legislatures and liberal governors could enact state laws consistent with U.N. Resolution 16/18, effectively Sharia law.
The above could be the basis of prosecutions for speech deemed offensive, “which is meant to provoke, spread hate, or create animosity and hostility.” Deemed by whom? The heckler’s veto?
Leading up to the U.S. presidential election in 2020, observe how the Democratic Party’s policies promote socialism of classes based on identity, in-other-words, social justice. These principles are embodied by its Deputy Chair, Keith Ellison, who self-identifies as the “first Muslim elected to Congress” [D-15, Michigan]. Ellison worked with the Nation of Islam and defended Farrakhan, but then Ellison claimed disavowal. Yet, the Muslim Brotherhood, via its Muslim American Society, financially backed Ellison. Another Muslim Brotherhood front group, the Islamic Society of North America, has provided forums for appearances by Ellison and President Obama.Ellison was sworn-in on the Quran, evidencing his allegiance to Islam and Sharia law.
Under Sharia law, it is illegal to criticize Islam and Muhammad. In the American Thinker, Andrew G. Bostom reported: “Mirroring a shared communal understanding of their clerical leadership with regard to ‘blasphemy/apostasy,’ the results of polling data collected by Wenzel Strategies during October 22 to 26, 2012, from 600 U.S. Muslims, indicate widespread support among American votaries of Islam for this fundamental rejection of the basic freedoms of expression and conscience, as guaranteed under the First Amendment to the U.S. Constitution. When asked, ‘Do you believe that criticism of Islam or Muhammad should be permitted under the Constitution’s First Amendment?, 58% replied ‘no,’ 45% of respondents agreed …that those who criticize or parody Islam in the U.S. should face criminal charges,” and fully 12% of this Muslim sample even admitted they believed in application of the draconian, Sharia-based punishment for the non-existent crime of ‘blasphemy’ in the U.S. code, answering affirmatively, ‘…that Americans who criticize or parody Islam should be put to death.’”
“Islam isn’t in America to be equal to any other faith, but to become dominant. The Quran should be the highest authority in America.” – [HAMAS] CAIR founding chairman Omar Ahmad, quoted in the Muslim Mafia, by P. David Gaubatz [Ch. 17, p. 265; See Ahmad’s denial: fn 1, p. 400].
Absolute power is intended to be restrained by: The U.S. Constitution via enumerated powers; the Bill of Rights via preservation of liberties; and specifically the Tenth Amendment via reservation of powers to the states, or to the people.
The Fifth Amendment’s prohibition of Double Jeopardy is intended to prevent prosecutions repeatedly against political adversaries.
As long as Double Jeopardy is eroded by exceptions, there may be a new exception for prosecutions repeatedly for speech deemed offensive.
And if that happens, all of us are in jeopardy.
Gerald Lostutter is a Florida licensed attorney, college professor, and journalist. This article does not create an attorney-client relationship. You should consult a licensed attorney.
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