Double jeopardy – momentarily revisiting Casey Anthony

Looking over some of the search engine terms coming into my blog with regard to my article on the Casey Anthony verdict, I’m sobered and concerned at the same time:

  • can casey anthony now be compelled to answer questions
  • can a not guilty verdict be overturned
  • casey anthony evidence of innocence
  • can casey anthony not guilty verdict be overturned
  • why was casey in jail if presumed innocent

Now some of these search terms could have been from outside the United States, but if any of these searches came from inside the US, I definitely have reason to be concerned. Actually given many statistics published about how much our citizenry knows about the government, I have reason to be concerned anyway. Too many people have no clue as to how our criminal justice system works. Too many people have no clue what rights they have when confronted with a criminal complaint.

First, let’s address a couple of the questions implicit in the search terms:

Can Casey Anthony be compelled to answer questions now that she has been acquitted? Only under certain circumstances, typically requiring a court order. There are other crimes with which she could be charged related to the death of her daughter, so she still retains her Fifth Amendment rights and cannot be compelled to answer questions.

Can a “not guilty” verdict be overturned? Not in the United States.

Why was Casey in jail if she is to be presumed innocent? To put it simply: she was charged with a felony. The question really should be why she was in jail for so long without any actual trial. But beyond this, the government has the authority and power to hold you in jail to ensure you answer the charges that have been filed against you. If there is reason to believe you will flee the jurisdiction before you can answer the charges, they will hold you in jail.

What evidence exists showing that Casey Anthony is innocent? First, she was never found “innocent” by the jury, but was instead deemed “not guilty”, which means that the prosecution did not prove beyond reasonable doubt that Casey Anthony is guilty. In our criminal justice system, Casey Anthony is to be presumed innocent until properly obtained evidence is presented to a jury and that jury determines otherwise. In this case, the jury could not determine otherwise. Casey Anthony need not provide evidence that she is innocent, only plug enough holes in the evidence the prosecution presents.

What about the Federal government prosecuting Casey Anthony? I’ve addressed that notion here and here. Please read and be educated.

Now let’s talk about double jeopardy.

* * * * *

If the only thing that pops to mind when hearing the words “double jeopardy” is Alex Trebek and giving answers in the form of questions, then please read on and be educated. Now if the movie starring Ashley Judd and Tommy Lee Jones comes to mind, that’s a little better – though the premise in the film is a little flawed.

The legal concept of “double jeopardy” with regard to the criminal justice system in the United States can be found in the Fifth Amendment:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb

If all goes well in the trial, and the prosecution presents and rests, the defense presents and rests, and the case is handed over to the jury and the jury returns a verdict of “Not guilty”, the case ends there. In the case of Casey Anthony, she can never again be charged with killing her daughter. Well charges cannot be filed that allege Casey Anthony killed Caylee, but Casey Anthony can still be charged with conspiring to kill her, if there is evidence a conspiracy was involved.

This sounds like double jeopardy, but conspiracy and murder are considered two different offenses due to what is called the Blockburger test:

The applicable rule is that, 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 an additional fact which the other does not.1Blockburger v. United States, 284 US 299 (1932), at 304

The individual crimes of “conspiracy to commit murder” and “murder” both have facts that overlap. But they have facts that are distinct, satisfying the Blockburger test. The Fifth Circuit Court of Appeals has ruled such in a case involving a person charged with both conspiring to commit a crime and actually committing the crime, with the conspiracy prosecution occurring second.2United States v. Kalish, 734 F.2d 194 (5th Cir. Tex. 1984) I know it sounds like double jeopardy because implicitly it is two prosecutions for the same offense, but in the matter of law it is not.

As mentioned above, under the Fifth Amendment no acquittal from a jury can be nullified or overturned. In the United States much trust is placed on the jury and the jury is always presumed to be impartial and incorrupt. Now this may not always be the case, but because that is the case in the vast majority of cases, it is generally presumed. Appellate courts and governors are very reluctant to override a jury verdict. If that were to happen too frequently, the entire jury system would be compromised, and the jury is fundamental to our criminal justice system. Some would even call it “sacred”.

Where a trial is not subject to the “double jeopardy” rules includes cases of a mistrial or hung jury – basically cases where a jury is unable to render a verdict or is not given the chance to do so. If a conviction is vacated and a new trial ordered, double jeopardy does not apply. Cases where charges are dismissed without prejudice are also not subject to double jeopardy. If an trial has become so tainted that a judge dismisses charges with prejudice, double jeopardy attaches.

There may also be times where an appeal renders a prosecution’s case so damaged that the original trial judge has virtually no choice but to dismiss the charges, typically without prejudice just of the off-chance that something else might come around to warrant a new trial. Rarely is the dismissal with prejudice. Doing so would mean that something has utterly prejudiced the prosecution to the point where it is impossible for the accused to receive a fair trial.

So let me summarize with an extreme example of how double jeopardy works: Casey Anthony could confess on national television that she actually killed her daughter, even providing all the nasty details that could not be uncovered with forensic evidence, and she is completely immune from prosecution unless evidence emerges that she conspired with another to kill her daughter.