On my article regarding double jeopardy, a person named “Pete” left a rather long comment. The comment explores the possibility of a Federal prosecution against Casey Anthony, basically taking the dual sovereignty doctrine and running with it.
So this got me thinking about the statute of limitations with regard to both the Florida prosecution and the possibility of a Federal prosecution. Unfortunately things are bleak on both fronts.
First, as I’ve said in a previous article discussing the dual sovereignty doctrine, the Federal government is very unlikely to take up this case. And Federal exercise of the dual sovereignty doctrine is rare. But I’ll discuss this in more detail later and hopefully I’ll show why it is unlikely the Department of Justice will actually bring charges against Casey Anthony.
But even beyond that, things look bleak with the possibility of further prosecution for Casey Anthony. Let’s explore this. First, one fact needs to be established for this discussion: evidence shows that Caylee Anthony was likely killed on our around June 16, 2008. It is, as of this article, January 2013.
First, Florida is out of the picture. Due to the time limitation on prosecution and her acquittal, Casey Anthony is immune from additional prosecution under Florida jurisdiction. The maximum time limitation on all non-capital crimes is four (4) years from the alleged date of the offense, as defined at 775.25(1)(a) in the Florida law, which was reached in June or July 2012.
And as the Constitution of the United States at Article I, Section 10 forbids States from passing any ex post facto law, the statute of limitations cannot be retroactively modified to expose Casey Anthony to any additional prosecution under any applicable Florida statute.
Let us now turn to Federal law and, once again, the dual sovereignty doctrine.
Just as under Florida law, capital offenses, of which murder (18 USC § 1111) is included, carries no time limitation on prosecution (18 USC § 3281). And non-capital Federal offenses, if there are any related to Caylee’s murder, have a time limitation of five (5) years (18 USC § 3282), making Casey Anthony eligible for prosecution on any lesser felony offenses until June or July 2013.
Again, though, Federal prosecution is unlikely due to a policy within the Department of Justice called the Petite Policy [USAM 9-2.031], named after Petite v. United States, 361 US 529 (1960). Under this policy, the Department will not consider a Federal prosecution unless there is a substantial Federal interest that has not been vindicated. State prosecutions are always presumed to vindicate any Federal interest, regardless of outcome.
In other words an Assistant Attorney General of the United States must be satisfied that there is a Federal interest to be addressed by prosecuting Casey Anthony under Federal law that has not been met through her trial in the State of Florida. State prosecutions are always presumed to vindicate any Federal interest, but the consideration of five criteria may overcome that presumption:
- incompetence, corruption, intimidation, or undue influence
- court or jury nullification in clear disregard of the evidence or the law
- the unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact’s consideration because of an erroneous interpretation of the law
- the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense
- the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions
So currently we have a waning Federal statute of limitations on all possible charges except murder. The Petite Policy stipulates that the trial’s acquittal outcome is to be presumed to have vindicated any Federal interests except upon the determination of the above-mentioned criteria, and I don’t see any of these criteria applying at all, meaning, as I’ve said before, it is extremely unlikely that the Department of Justice will exercise dual sovereignty over Casey Anthony.
But I don’t see the debate ending here.
Despite everything I’m finding leaning against the Federal government taking up prosecution, the “Justice for Caylee” communities will likely still hold out hope, filing petitions and the like. Again I don’t see it happening. And holding out hope for something that is extremely unlikely is a waste of energy.
I think it is time that the various “justice for Caylee” communities finally give up on seeing any additional prosecution against Casey Anthony. Let Caylee rest in peace and let Casey just fall into obscurity.
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Amendment – 2017-04-11:
The Federal government never had jurisdiction, so arguing dual sovereignty and the Petite policy was a moot point, and only one brought up by the those seeking “justice” for Caylee simply because they saw it as an alternative when it became clear Casey Anthony’s acquittal can never be vacated.
A point often missing from discussions over dual sovereignty is the Federal government’s enumerated powers. At Article I, Section 8 of the Constitution, the Federal government will have criminal jurisdiction only with regard to the exercise of its powers.
With Master Sergeant Timothy Hennis, that dual jurisdiction is quite obvious since Hennis was in the United States Army. And whenever a member of the United States Armed Forces commits a crime under a State jurisdiction, that member is subject to disciplinary action with a State prosecution and military court martial. And he was recalled to service so the Army could exercise its jurisdiction under the Uniform Code of Military Justice.
Casey Anthony’s alleged actions, however, were never subject to Federal jurisdiction.
No proper interpretation of any of the Federal government’s powers at Article I, Section 8 or in any Amendment would allow the Department of Justice to press charges against Casey Anthony in the death of her daughter. That is the reason the Federal government never presses charges over most murders.
Only if evidence suggested she killed her daughter on Federal property would she then be subject to the Federal jurisdiction. Or if she was in the military, or an employee of the Federal government acting in her position.
As the Federal government never had jurisdiction over Casey Anthony’s alleged actions, there is no possibility of any further prosecution, and is, therefore, criminally immune.