The Ninth Amendment to the Constitution of the United States is quite simple in its language:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
It is arguably the most overlooked Amendment to the Constitution. But it is also the most important in my opinion. I’ve argued here that even if the Second Amendment were repealed, the Ninth Amendment would still preserve a right to keep and bear arms. Removing the enumeration of it from the Constitution doesn’t erase the right.
And it is the Amendment that has been cited whenever the Supreme Court of the United States “finds” rights, such as the right to privacy inherent to several other protections the Supreme Court has afforded the People.
Among the enumerated rights in the Constitution is the protection against double jeopardy. But the trade-off on this protection is the Courts declaration of when jeopardy “attaches”. And generally it’s accepted that jeopardy attaches when a jury renders a verdict. But jeopardy is nullified if the conviction is overturned and a new trial ordered.
Which is why a man in Mississippi is currently facing a 7th trial on the same charges. I wish I was making that up.
49 year-old Curtis Flowers is facing his 7th trial on capital murder charges. His most recent conviction was overturned by the Supreme Court of the United States, citing racial bias in the jury selection.1Flowers v. Mississippi, 588 US ___ (2019) Trials four and five ended in hung juries.
One could definitely argue that, even though jeopardy technically hasn’t attached to Flowers, the Constitution does not allow what appears to be seemingly endless attempts to get a conviction that sticks. While the Constitution specifically calls out double jeopardy in the Fifth Amendment, the Ninth Amendment surely protects a right against endless attempts to get a conviction.
Right now Flowers is trying to get the indictment quashed while also trying to secure bail, saying there should be a limit to “oppressive retrials”. And I agree. Six tries is beyond too many. This man has been in and out of jail, on trial and not for 20 years. At what point do the Courts say that enough is enough and quash an indictment with prejudice? Flowers’ case should become precedent on that mark.
Update: The Mississippi Attorney General filed motion to dismiss the indictment against Flowers, and the Fifth Circuit District of Mississippi dismissed the indictment with prejudice on September 4, 2020. This is, in effect, an acquittal as this indictment cannot be later revived.