In this piece, Fayetteville Observer senior editorial writing Gene Smith writes that he believes Timothy Hennis is guilty of three murders but nevertheless opposes his prosecution by court-martial. 

Mr. Smith argues:  “[T]here’s nothing vague or archaic about Amendment V: no one shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’  Maybe you liked the process and are delighted with the outcome. Fine. But tell me, honestly, that that’s not precisely what happened to the murderer Timothy Hennis: twice in jeopardy of life and limb.”

Actually, no, it isn’t.  The Fifth Amendment doesn’t refer to being twice put in jeopardy for the same act; rather, it refers to being twice put in jeopardy for the same OFFENCE.  And, as the Supreme Court has indicated, violating North Carolina General Statute 14-17 isn’t the “same offence” as violating 10 U.S.C. § 918.  As the Supreme Court observed in 1852:

Every citizen of the United States is also a citizen of a State or territory.  He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either.  The same act may be an offence or transgression of the laws of both.  Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offence against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same person to a punishment, under the State laws, for a misdemeanor or felony.  That either or both may (if they see fit) punish such an offender, cannot be doubted.  Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.  He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. The State of Ohio, (5 How. 432,) that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practised on its citizens; and, in the case of the United States v. Marigold, (9 How. 560,) that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States.
Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852).
Of course, the “not same offence” analytic framework isn’t universally applied.  10 U.S.C. § 918 and 18 U.S.C. § 1111 are also separate offenses.  But under Supreme Court case law, it would be impermissible to try a servicemember who allegedly commits a murder in the special maritime and territorial jurisdiction of the United States in both a court-martial and U.S. district court for that act.  For court-martial/U.S. district court double jeopardy purposes, the Supreme Court looks at whether the prosecutions arise from the “same acts” rather than whether the prosecutions are for the “same offence”:  “the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government.”  Grafton v. United States, 206 U.S. 333, 352 (1907).

8 Responses to “Hennis and double jeopardy”

  1. Anonymous says:

    Constitution of the U.S.
    The Constitution of the U.S. comprises the primary law of the U.S.Federal Government. It also describes the three chief branches of the Federal Government and their jurisdictions. In addition, it lays out the basic rights of citizens of the United States. The Constitution of the United States is the oldest Federal constitution in existence and was framed by a convention of delegates from twelve of the thirteen original states in Philadelphia in May 1787. The Constitution is the landmark legal document of the United States. I realize everyone has very strong opions here. But how is anyone going to say this is not A violation of his 5th Amendment rights? The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Under the Constitution, the President’s pardon power extends to convictions obtained in military court-martial proceedings.

  2. Anonymous says:

    GREEN v. UNITED STATES.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
    COLUMBIA CIRCUIT. No. 46.
    Argued April 25, 1957. Restored to the calendar for reargument June 24, 1957. Reargued October 15, 1957.
    Decided December 16, 1957.

    Petitioner was indicted and tried in a federal court for first degree murder. The judge instructed the jury that it could find him guilty of either first degree murder or second degree murder. The jury found him guilty of second degree murder, and its verdict was silent on the charge of first degree murder. The trial judge accepted the verdict, entered judgment, dismissed the jury and sentenced petitioner to imprisonment. On appeal, his conviction was reversed and the case was remanded for a new trial. On remand, petitioner was tried again for first degree murder under the original indictment, convicted of first degree murder and sentenced to death, notwithstanding his plea of former jeopardy. Held: Petitioner’s second trial for first degree murder placed him in jeopardy twice for the same offense in violation of the Fifth Amendment, and the conviction is reversed. Pp. 185-198.

  3. DB Cooper says:

    I think the author was advocating a more common sense reading of the Double Jeopardy clause. We (lawyers) all get the whole “two sovereigns” legal argument, but does it really make much sense to non-lawyers in this day and age? The author’s bottom line is that Hennis is being tried for murder a second time by “the government” following his acquittal.

    Moore v. Illinois made more sense in 1850, when the states and federal government truly were different sovereigns which rarely overlapped. Today, the state and federal criminal systems are hihgly redundant, particularly because federal jurisdiction has the potential to attach to any act committed in “interstate commerce.” We (lawyers) know that “interstate commerce” means just about anything under the sun, but it didn’t mean that back in 1850. Also, the federal government now regulates non-criminal matters that were solely “state business” in 1850, e.g., marriage (DOMA anyone?), education, local commerce.

    Now, I accept that this is simply the way things are now, but it makes Moore’s “two sovereigns” rationale seem dated, anachronistic, and unrealistic.

  4. Christopher Mathews says:

    I suppose it depends on whether you believe that separate trials by the state and the feds represent a fundamental violation of a person’s liberty interests. If you don’t, there’s really not much of a problem: I don’t know that it can be established that the Framers did, either.

  5. Anonymous says:

    Well, I’m not sure the Framers thought there’d be a lot of criminal justice being done by the federal government.

    I agree the legal analysis is correct. Hennis’ conviction is lawful under a double jeopardy analysis.

    Of course, that analysis is a bit of a legal fiction we’ve come up with so as not to remove one of the potential bites at the apple we have to convict someone of a crime.

    A legal fiction that many state’s have now recognized by codifying that they won’t try someone for an offense or “act” that has been tried by the Feds already. Of course, the Feds have no such self-limitation.

    At the end of the day, it’s 150 year old law so it is hard to say that it’s unlawful or even unjust, and yet, just a little bit, it feels like it is.

    Best two out of three doesn’t exactly inspire confidence in the finality of the legal system, particularly when that “finality” is used to, for example, bar DNA testing when it might favor an accused.

  6. Josh says:

    Not sure if I agree with the rest of Cooper’s comment, but I do think Gene Smith’s piece seems to critique Moore and its progeny more than ignore it. Was the point of this post to blast Smith for his ignorance of DJ jurisprudence or to argue in support of it. I think if you read the entire editorial, it’s pretty clear he is not ignorant of it, but just doesn’t feel comfortable with it.

  7. manasa says:

    I think this falls more under abuse of a legal proceeding by the government here, we may debate double jeopardy until we are all blue in the face, the fact of the matter this simply does’nt feel right.

    I dont believe the framers meant for the system to be based a two out of three aint bad justice system where the government state federal or otherwise simply gets to try a man until they find a jury to find him guilty.

    The idea that a man should face trial three timese with his life at steak is’nt one iota American.

  8. Anonymous says:

    So why stop now that he’s been found guilty? How about one more trial with a combination of all the jurors who acquitted him and the panel members who convicted him. Ugg. Very thoughtful analysis above, but this reeks. Thankfully, our Founding Fathers are way too busy spinning in their graves about the Commerce Clause and other issues, or this would really get them riled up.