Here is a link to Stars & Stripes article on the motions hearing in the court-martial of Air Force Staff Sergent Sean Oliver.  Oliver is accused of premeditated murder in the death of PO2 Dmitri Chepusov, a reporter with the  rmed Forces Network reporter.  Oliver is accused of “beating and strangling Chepusov at the house of another AFN airman in December 2013. Chepusov’s body was found in the passenger seat of Oliver’s car Dec. 14 after German police pulled Oliver over for driving erratically in Kaiserslautern.”  Military Judge Colonel Donald Eller denied a defense motion to suppress Oliver’s statements, among other rulings.  Prior coverage here and here.

Colorado Springs Gazette has this story on the court-martial proceedings at Fort Carson int he case of Sgt. Montrell Mayo, who is acccused of killing his girlfriend, Cpl. Kimberly Walker in a Colorado Springs hotel room after a Valentine’s Day rendevous went wrong.   It doesn;t appear from the latest reports that the death sentence is available inthis case.

33 Responses to “MIlitary Justice News for Monday, Nov. 17, 2014”

  1. Scandalous says:

    What?  No mention of the recent former MDW/Fort Belvoir Army JAG who was arrested with his wife for stabbing and torturing his wife’s former managing partner?

  2. Brian lc says:

    It’s the most bizarre case, and sad. 

  3. k fischer says:

    Scandalous,
     
    I CAALog would mention the LTC who is being administratively separated for “harassing” a lesbian couple who was getting busy on the dance floor with prolonged french kissing and disrobing and “assaulting” an NCO who tried to visually record it.  

  4. k fischer says:

    ******I hoped CAAFlog

  5. stewie says:

    Scandalous who is this you are talking about?

  6. Mike "No Man" Navarre says:

    We are not a gossip site so I spammed the comments guessing at who the MDW Judge Advocate was.  Here is an ABA Journal article and a WaPo article, here, an excerpt from the WaPo:

    But the prosecutor said that this was no ordinary burglary — it was something more sordid: revenge. And that the alleged perpetrators were a pair of lawyers, one of whom was angry over her recent dismissal from Fisher’s Arlington County firm, Bean, Kinney & Korman.

    Over the next several hours, Fisher and Duncan were held hostage in their home. They were tormented and stabbed so brutally that Fairfax County Commonwealth’s Attorney Raymond F. Morrogh (D) said it could only be described as a “torture session.”

    Bizarrely, after the alleged suspects, Andrew and Alecia Schmuhl, fled, police found Andrew Schmuhl wearing only a diaper, authorities said.

  7. Peter E. Brownback III says:

      I realize that this is not a gossip site and I get a lot of great hard military justice news and information from it.
     
     However, I can’t resist — Was Andrew an astronaut?  ( http://en.wikipedia.org/wiki/Lisa_Nowak )
     

  8. TC says:

    I was just thinking Lisa Nowak reading No Man’s post.

    Nothing on the Cossio Error Coram Vobis?  It’s showing as filed 10 Nov 2014.  Originally I thought I’d take a stab (no pun intended) at it after finding out CAAF’s ruling on Sharpton.

    A member’s pay check was transferred to a charity organization in Russia.  It was charged MILITARY property of the United States.  A colorable argument could be made that the member was the victim, not the USA.

    Colorable, but not as strong as the underlining issue.  This was non-military larceny. United States v. Hall, (ACM 3824), AFCCA held that BAH and BAQ are not “Military Property”.

    A member’s pay check also comes from DFAS and does not have a unique military function.

    I asked for counsel for additional arguments and filed a supplemental brief more under the argument that it is not military property, regardless of whether it is the member or the USA that is the victim.

    Another issue which favors me, it does not look like my detailed Appellate Counsel submitted any arguments concerning the larceny charge.

    It’ll be interesting on what type of relief could consist of if granted.  Or if my argument will be voided on some ridiculous presumption as last time.

  9. TC says:

    @Mike “No Man” NavarreI think my browser dumped some code on the above post, you guys need an edit function :P

  10. RKincaide3 (RK3PO) says:

    Not necessarily military justice related, but it is justice related.  Did anyone notice that Scotland has abolished the double-jeopardy rule?  Can you believe that?  Current exceptions:  murder and rape cases involving exceptional circumstances, such as the discovery of new evidence not originally available at trial. 
    Freaking ridiculous if you ask me.  Is the world going crazy by forgetting about the concept of “finality” in both the law and an organized society?

  11. TC says:

    @RKincaide3,
    Double Jeopardy has been in loosely followed here in the states and everywhere else.  Prosecutors scheme to get around it.  None more so then the military which routinely takes acquittals from state courts.
    There is no outrage because our culture is obsessed with punishment (other countries sentences are 1/3 less than the USA).
    It was the case since the founding of our nation (i.e. Jack McCall’s assassination of Wild Bill and subsequent retrial).

  12. stewie says:

    I dont think your example of scheming works…DJ is about being tried by the same sovereign twice. It’s not about being tried twice period (obviously for the same offense).
    e.g., let’s say a Soldier kills someone in Canada. It’s not DJ for the military (or some US entity, state or Federal) to try him and for Canada to do so, because, different sovereigns.
     
    States and Feds are also different sovereigns thanks to federalism. I don’t think that’s scheming, that’s been a part of the system since the start.  I don’t think it has anything to do with a US obsession with punishment.

  13. TC says:

    Stewie,
    I understand the Separate Sovereigns Doctrine.  I also understand it as a creation of a Court and that there is no compelling reason to apply its constitutional protections only to States.  US v. Lanza was decided only in the 1920’s.  Other countries have different rules allowing convictions on appeal.  Some alright finality at trial.
    The case above (The Murder of Wild Bill) is a good example, because it was in the same sovereign.  The Government just refused to recognize a court composed of miners and villagers in the interest of securing a conviction and hanging.
    I could go on.  I knew a guy (J. Tarver) who was CM for drug use, did not get the kick from the Judge.  The JAGs at Hurlburt decided to CM him again and add a “Perjury” charge (they said he lied in his unsworn statement not to do drugs again – a stooly said that Tarver told him he couldn’t wait to do blow once he got out).  He received an even lighter sentence the second time around.  But this is an example from the same jurisdiction.
    It happens, and there is nothing you can do about it.

  14. Advocaat says:

    Thank you for the link, @RK3PO.  I usually find myself nodding to your insightful posts but I respectfully disagree with your sentiment in this instance.  After reading the the Double Jeopardy (Scotland) Act 2011, it looks to me like the Scots have enacted thoughtful, limited legislation that includes significant hurdles for the government to clear before an accused can be prosecuted a second time.

  15. stewie says:

    I don’t know that the doctrine is the creation of a court, it’s literally many hundreds of years old. Your second example is unclear, adding a perjury charge is not double jeopardy.
     
     

  16. RKincaid3 (RK3PO) says:

    TC:  The DJ construct as applied by the courts is not a judicial construct.  As correctly noted by Stewie, it is literally hundreds of years old.  Its origins lay in the history of abusive, repetitive trials by sovereigns until the sovereign achieved a desired, satisfactory result.
    The courts in this country have gone to great pains researching and analyzing the history of DJ and have, I submit, rightfully and factually, concluded that the jurisdictional element of DJ prohibitions preceded the adoption of the U.S. Constitution and its prohibition on DJ, and in fact survived it because the DJ limitations practiced in the American colonies at the time of the debates was generally the same as in England.   The judicial conclusion that the founders were certainly not changing accepted contemporary practice and historical antecedents regarding DJ by incorporating it into the constitution is certainly not unfounded or unwarranted.  And is most certainly not a scheme.  It is in fact the practice of recognizing that government must govern while also recognizing that government authority to govern must be heavily circumscribed.

  17. RKincaid3 (RK3PO) says:

    Advocaat:  Thanks!  I agree that the Scottish repeal of DJ in certain exceptional cases appears to extremely limited by “significant hurdles for the government…before an accused can be prosecuted for a second time.”  However, I am always concerned about a government that can avenge every crime (or a society that can right every wrong) because far too many seem to forget that a government or society that can avenge every crime and right every wrong, subjectively, can also commit every crime and impose every wrong, objectively.  By ignoring that fact, we really are our own worst enemy!
     
    Please forgive me and allow me to go on a bit of a tangent (I know, right–no surpise!).  From the perspective of managing/governing a diverse society, it must be remembered that all crimes—except murder—have (or should have) statutes of limitation.   And I view the DJ concept as a similarly important limitation upon government.  Why?  Because, in determining whether and how long a statute of limitation to set, or in determining whether DJ should exist as a concept, it must be remembered that there is an extremely fine line between a “crime” and a “mistake.” We should not be too quick to criminalize mistakes (which should be remedied) nor too quick to remedy crimes (which should be avenged).  However, the victim of a mistake argues that a crime has been committed and demands “justice” and the perpetrator argues that a “mistake” has been made.  Both the victim and society then decry as “unjust” the system (government) that denies them their respective personal, subjective satisfaction with the outcome despite an objectively fair and balanced process. It is all a matter of perspective—a subjective perspective—that determines whether a crime or a mistake has been committed or whether the outcome was just or unjust. And therein lays the making of tyranny.  The conflation of the two concepts—and the fine line between them—makes this the fine line—literally—between justice and tyranny.
     
    From my perspective, in setting limits on government and societal/civil actions against individuals, there most definitely should be a DJ clause that is largely absolute.  Why?  Because the older the witnesses and the evidence are, the less likely it is that objective justice will result and the more likely that subjective justice will result.  If history has taught us anything, subjective justice is usually anything but just.  As a both a judicial and social concept, DJ is a significant rule and it allows the greater part of society to objectively move on—even if subjectively—some feel denied or put upon.  Indeed, if DJ is removed, the past failures to convict should be admissible as evidence at trial of the doubt as to the accused’s guilt.  It is about achieving social balance–not subjective satisfaction–with ambiguities construed in favor of liberty for all.
     
    As for the other general limit upon government, statutes of limitation, there should be no statute of limitation on murder.  But there should be a statute of limitation on rape (unless murder was part of the rape or unless children are the victims of a rape). Treason should also be limited to those unique circumstances in which death resulted directly from the treasonous act and only when the death can be specifically and directly traced to the treasonous act.
     
    Why should there be in all cases and all matters both social and legal limitations? Because, it is the continued public demand for a never ending, civil (vice judicial) hounding, pestering, harassing and otherwise damned uncivilized calls for perpetual retribution that has me frustrated about how little we humans learn from our own history.   Whether it is the hysteria over the McMartin Preschool abuse case (what was largely a massive fraud supported by nothing more than numerous, hysterical and false allegations) or the recent “piling on” against Bill Cosby or Woody Allen for really, really old allegations (which are neither proof nor conviction).  What do they all have in common?  They are a form of Moral panic or moral outrage wherein it is easy to cast stones out of self-righteous indignation.  When determining how far society (government) can be allowed to prosecute (legally) or persecute (societally), it must always be remembered that someone must always play the role of advocatus diaboli to avoid the headlong rush into either tyranny of the majority or tyranny of the minority.  Both are antithetical to liberty and yet both are conveniently and easily resorted to for purely subjective reasons
     
    Again—subjective satisfaction with a particular outcome is called revenge and revenge is neither justice nor civilized. Remember, too, that death is final and should be reserved for the worst of the worst and, as noted correctly by the U.S. Supreme Court, as bad as it is, rape is NOT equivalent to death in severity and therefore death is NOT a constitutional punishment for cases wherein death itself is not the crime being avenged by society’s imposition of the death penalty.  Statutes of limitation must likewise be skewed toward serving the whole of society and not frittered with simply because a few are subjectively disaffected by the objective results of their application.
     
    Objectively satisfactory justice is just. Subjectively satisfactory justice is tyranny.  One who recognizes liberty as a concept worth protecting must necessarily recognize that the imposition of limits upon both government power to prosecute and societal power to persecute necessarily require a significant tolerance occasionally letting bad people get away with having done bad things unrequieted.
     
    And such a state—as subjectively unsatisfactory as it is—is certainly, to the reasonable, objective person, much more important and tolerable than is the government that can avenge every crime or the society that can right every wrong. 

  18. TC says:

    @RKincaid3 (RK3PO) @stewie
    We went off the rails here.  What I said was NOT applying DJ in federal trials vis-a-vis a state trial for the same offense is a judicial construct, something almost entirely unique to the USA.  The Court’s refusal to fully incorporate this and apply it to federal and state trials is opinion based construct as the the Court could have taken the stance that any trial in any sovereign in the USA would bar another, but has not done so.
    My second point is that prosecution agencies scheme to get around constitutional rights, DJ is one, speedy trial and search and seizure are an other.
    The example dealing with the Tarver case is on point.  The additional charge of perjury (by lying on an UNSWORN statement) was a bogus charge.  Tarver was acquitted on the additional charge and given a lighter sentence.
    stewie’s answer is exactly what the prosecutors argued, that it isn’t double jeopardy.  But it was, the Convening Authority disproved the original drug use charge, and retried Tarver on the same drug use (which he already plead guilty) plus added a bogus perjury charge in order to get a BCD.

  19. RKincaid3 (RK3PO) says:

    TC: You stated:

    The Court’s refusal to fully incorporate this and apply it to federal and state trials is opinion based construct as the the Court could have taken the stance that any trial in any sovereign in the USA would bar another, but has not done so.

    Umm, hate to break it to you, but the courts have rejected “do[ing]” what you advocate because to do so would change the historical and legal practice that existed before the adoption of the Consitution, occured contemporarneously with the debate over the constitution (and the DJ clause) and survived the adoption of the Constitution.  
    So, no, despite your assertion that it is, the jurisidictional element to DJ about which you complain is NOT a judicial construct.  It is a historical legal construct established by the common law in England and brought to the colonies and incorporated into the constitution and remains the practice in the US today.  And rightly so, I say.

  20. Another AF JAG says:

    TC, you wrote “This was non-military larceny. United States v. Hall, (ACM 3824), AFCCA held that BAH and BAQ are not “Military Property”.”
    You might want to retake a look at AFCCA’s website or maybe, I don’t know, Shepardize the case.  AFCCA reconsidered that opinion, recognizing they had failed to apply CMA precedent and in a published opinion held “[t]he appellant was charged with stealing military property in the form of BAH.  BAH is “military property” of the United States.  United States v. Dailey, 37 M.J. 463, 464 (C.M.A. 1993).”  United States v. Hall, ACM 38241 (recon). 

  21. RKincaid3 (RK3PO) says:

    TC:  Here is another way to think of the DJ issue:  ask yourself this:  why would a court charged with interpreting the DP clause of the constitution adopt an opinion (create a judicial construct, if you will) that does specifically what the founders declined to do when they debated and adopted the DP clause: eliminate the jurisdictional element of the DJ clause?Such a decision would hardly be adhering to traditional tools of statutory construction and borders awfully close to the subjectively satisfying argument that justice has been denied simply because one doesn’t personally like the outcome.  Isn’t that largely the problem with our society now–everyone feels wronged when things don’t work out the way they want.

  22. TC says:

    Normal
    0

    false
    false
    false

    EN-US
    X-NONE
    X-NONE

    /* Style Definitions */
    table.MsoNormalTable
    {mso-style-name:”Table Normal”;
    mso-tstyle-rowband-size:0;
    mso-tstyle-colband-size:0;
    mso-style-noshow:yes;
    mso-style-priority:99;
    mso-style-parent:””;
    mso-padding-alt:0in 5.4pt 0in 5.4pt;
    mso-para-margin-top:0in;
    mso-para-margin-right:0in;
    mso-para-margin-bottom:10.0pt;
    mso-para-margin-left:0in;
    line-height:115%;
    mso-pagination:widow-orphan;
    font-size:11.0pt;
    font-family:”Calibri”,”sans-serif”;
    mso-ascii-font-family:Calibri;
    mso-ascii-theme-font:minor-latin;
    mso-hansi-font-family:Calibri;
    mso-hansi-theme-font:minor-latin;}

        TC, you wrote “This was non-military larceny. United States v. Hall, (ACM 3824), AFCCA held that BAH and BAQ are not “Military Property”.”
        You might want to retake a look at AFCCA’s website or maybe, I don’t know, Shepardize the case.  AFCCA reconsidered that opinion, recognizing they had failed to apply CMA precedent and in a published opinion held “[t]he appellant was charged with stealing military property in the form of BAH.  BAH is “military property” of the United States.  United States v. Dailey, 37 M.J. 463, 464 (C.M.A. 1993).”  United States v. Hall, ACM 38241 (recon).

     
    Holy Moses you are right.  Well I’m reliant on Google here, and obviously you cannot fault me for failing to Shepardize a case when you apparently have the same mistake being made by attorneys…let me take a look…
    Yeah….except I still may be flying here, as this was a member’s “salary” and not bah/baq and the court in Dailey drew that distinction but let me check on some other stuff….
    I’ll have to research United States v. Hemingway and Dailey and see if a distinction is made for a member’s salary.
    Thanks, although this is bad news and potentially kills my buzz I was feeling a little while ago.

  23. stewie says:

    TC, respectfully, you are wrong. Federalism is I think the concept you aren’t getting. The States have always been separate sovereigns, that’s not a judicial construct, that goes all the way back to the Articles of Confederation. If we weren’t a federal republic, then the concept of separate sovereigns wouldn’t apply, but we are, thus, it does. That’s not a judicially created concept, that’s just plain history.
     
     

  24. TC says:

    Stewie ,
    “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”
     
    It is a judicial construct to take that language and say that the Federal Government, Tribal, and State Government both have a crack at charging someone with the same offense due to “federalism” and the concept of “separate sovereigns”.  Or that if I stood across the state lines and shot someone both States could prosecute me.
     
    I get it, the excuse used to try someone for the same offense twice.  It’s just wrong.  Reasonable minds could conclude that no person in the US can be retried twice, regardless of dual sovereignty.  A concept which has failed in other constitutional rights.  You can no longer argue that the other safeguards of the fifth amendment, or any of the Bill of Rights only apply to one sovereign and not the other.  And here, we are saying that a clause of the fifth amendment applies separately.  My last point was that DJ has been under attack since its indoctrination, rending the clause to be an empty promise and of little effect. Double Jeopardy’s Demise, 88 Cal. L. Rev. 1001 (2000).  Thus, whatever happened in Scotland is as shocking as seeing Timothy Hennis put back on death row.  Shocking that Scotland would abolish the DJ rule?  Wake me up when America actually gets it.

  25. Advocaat says:

    @TC, Scotland has not abolished DJ, my friend–the DJ(S)A permits an accused to be prosecuted a second time for certain offenses under very limited circumstances, and only after the government clears significant procedural hurdles.  The Act safeguards against the state from simply hitting the reset button until it secures a conviction.

  26. TC says:

    @Advocaat ,
     
    Thanks, I was going off Kincaid’s original post, I did not even bother checking on whether it was factual or not.

  27. RKincaid3 (RK3PO) says:

    TC:  You might like to review a few other sources on the history of DJ instead of relying on just one.  Consider the following links:
    http://www.law.cornell.edu/anncon/amdt5afrag2_user.html
    http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1209&context=wmborj
    You will see in those history going all the way back to Rome and Greece on this issue, including ancient history that “[t]hus, after stating that “[t]he governor must not allow a man to be charged with the same offenses of which he has already been acquitted,” the Digest ofJustinian explains that this principle means only that the individual cannot be charged by the same accuser…”
    So, I do not know why you continue to assert that the jurisdictional element of DJ is a judicial construct that can simply be avoided if only the courts would only choose to avoid it.  Why would a court charged with interpreting the law–not making it–rule in a way that actually changes not only the law, but ignores the history behind the law.The DJ clause has simply never meant what you would like it to mean–although, admittedly, many have argued that it should mean as you suggest.  My response to that the same as the response of the Scots in repealing DJ protections in certain extreme cases: it is a legislative decision–not a judicial one.

  28. TC says:

    @RKincaid3 (RK3PO)

    I do not know why you continue to assert that the jurisdictional element of DJ is a judicial construct that can simply be avoided if only the courts would only choose to avoid it.

    We keep dancing around here, I’ll say it this last time.
    There is no “jurisdictional element” in the DJ clause.  The court made up that the Feds can prosecute a person for the same offense as a State and vice versa.  Made up, out of thin air.

  29. RKincaid3 (RK3P0) says:

    TC:  You obviously didn’t read the links I provided or you would not keep saying that the court made up the jurisdictional element of the DJ clause out of thin air.  I can therefore only conclude that you have an opinion, belief or agenda and don’t want to be bothered by something as inane and unreliable as facts, history or the law.  I see a pattern here and wish you the best with your cause, whatever it is.

  30. TC says:

     
    I did, actually.
     
     
     
    And my head hurts.  What I said, and continue to say is that the Separate Sovereigns Doctrine if reference to DJ is a judicial construct out of thin-air.  Your own article says the same thing:
     

    Under the so-called “dual sovereignty” doctrine, two separate sovereigns, such as two states or the federal government and a state, can each prosecute an individual for the same act without running afoul of the Double Jeopardy Clause…Over the years, many judges and scholars have criticized the dual sovereignty doctrine.  See, e.g., id. at 98-101 (Marshall, J., dissenting) (as applied in the federal-state context) Your link, pg. 193

     
     
     
    So your history lesson is where did the USA get the separate sovereigns doctrine?
     
     
     

    Despite the fact that the Fifth Amendment of the Constitution of the United States provides for such protection against sequential prosecutions, the United States does not extend this protection to defendants who have been prosecuted in another sovereign state. Under the judicially-constructed dual sovereignty doctrine, U.S. courts allow separate sovereigns to seek redress for violations of their law independent of any action that may have been previously taken by another affected sovereign. It is this doctrine that the U.S. courts cite in choosing not to recognize non bis in idem as a binding principle of international law, but rather as a protection that may be provided only by treaty in cases of extradition.- Vanderbilt Journal of Transnational Law , Vol. 33, No. 5 , November 2000

     
    Construct.  Made up out of thin air.  I am not sure what agenda you are referring to, logic?
     
    So are you telling me you know of an earlier Government that applied the dual sovereignty doctrine to Double Jeopardy?  Inquiring minds want to know.
     

    Normal
    0

    false
    false
    false

    EN-US
    X-NONE
    X-NONE

    /* Style Definitions */
    table.MsoNormalTable
    {mso-style-name:”Table Normal”;
    mso-tstyle-rowband-size:0;
    mso-tstyle-colband-size:0;
    mso-style-noshow:yes;
    mso-style-priority:99;
    mso-style-parent:””;
    mso-padding-alt:0in 5.4pt 0in 5.4pt;
    mso-para-margin-top:0in;
    mso-para-margin-right:0in;
    mso-para-margin-bottom:10.0pt;
    mso-para-margin-left:0in;
    line-height:115%;
    mso-pagination:widow-orphan;
    font-size:11.0pt;
    font-family:”Calibri”,”sans-serif”;
    mso-ascii-font-family:Calibri;
    mso-ascii-theme-font:minor-latin;
    mso-hansi-font-family:Calibri;
    mso-hansi-theme-font:minor-latin;}

  31. David Bargatze says:

    TC,
     

    We keep dancing around here, I’ll say it this last time. There is no “jurisdictional element” in the DJ clause.  The court made up that the Feds can prosecute a person for the same offense as a State and vice versa.  Made up, out of thin air.

     
    The Feds did not make up the notion of federalism. It predates and is inherent in the Constitution. One of the United States can criminalize an activity, and the United States can criminalize an activity. Those are separate sovereigns, separate crimes, and an accused is subject to two separate trials. One does not preempt the other. You may object to this concept, but that does not change the history of the republic.
     
    Current DJ jurisprudence reflects what might be described as an incomplete incorporation. It allows the DJ clause to be enforced against a state, but only with regard to trials convened by that state. Given the steady undermining of federalism, it is somewhat surprising that DJ doctrine still acknowledges that the sovereignty of the States is not derivative of the sovereignty of the United States.
     
    This is not unique. Article 14, paragraph 7 of the International Convention on Civil and Political Rights reads: “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” That’s a prohibition against DJ. Much like ours, it only applies to each sovereign:

    The author has claimed a violation of article 14, paragraph 7, because he considers that a retrial in Iran in the event of his deportation to that country would expose him to the risk of double jeopardy. The Committee recalls that article 14, paragraph 7, of the Covenant does not guarantee ne bis in idem with respect to the national jurisdictions of two or more states – this provision only prohibits double jeopardy with regard to an offence adjudicated in a given State. See decision on case No. 204/1986 (A.P. v. Italy), declared inadmissible 2 November 1987, paragraphs 7.3 and 8.. Accordingly, this claim is inadmissible ratione materiae under article 3 of the Optional Protocol, as incompatible with the provisions of the Covenant.  -Paragraph 6.4, A. R. J. v. Australia, Communication No. 692/1996 (6 February 1996), CCPR/C/60/D/692/1996. (Link)
     

    Other sovereigns deal with this through treaties. See Article 9 of the European Convention on Extradition, Article 7(8) of the NATO SOFA, Article 1 of the Convention between the Member States of the European Communities on Double Jeopardy, etc. There wouldn’t be a need for international treaty protections (particularly in Europe) if the dual sovereign doctrine were really a product of US domestic jurisprudence. The States aren’t going to make a treaty with the United States, but the same result could be achieved through statute. I doubt that’s going to happen, as elected officials tend to ignore the plight of defendants.
     
    Perhaps DJ jurisprudence reform is simultaneously desirable and unlikely. That doesn’t mean that the existing framework lacks a solid and ancient foundation. It certainly isn’t a recent creation, despite what a Commodore might believe.

  32. RKincaid3 (RK3PO) says:

    Or, to put the two concepts together, consider this, TC: the following quote (which is just one of many in that source material I sent you–on the whole–the articles establish that DJ is much more than a judicial construct) interacts quite smoothly with the concept of federalism:

     “[t]he governor must not allow a man to be charged with the same offenses of which he has already been acquitted,” the Digest ofJustinian explains that this principle means only that the individual cannot be charged by the same accuser…”

    Under federalism, the federal government is ONE accuser in cases where federal jurisdiction exists.  Each state is another Accuser in cases where a state has jurisdiction.   Consider, too, that even this concept has its limits–the federal government is the SAME accuser whether prosecuted by either the Dep’t of Justice (with a US attorney as prosecutor) OR the Dep’t of Defense (in the case of courts-martial where the Commanding General is ).  But the DoJ and the DoD cannot both prosecute–the federal government must choose which poison to use against an accused within its jurisdiction and that choice may coexist with any state that also has jurisdiction over the conduct at issue–conduct which (even though only one incident itself) may also violate the law of another jurisdiction–thus giving rise to multiple charges from multiple accusers without triggering DJ.
     
    Yes, there are many who believe as you do–and it is a valid argument that many have articulated.   Such arguments may justify a change in the law.  But changing the law is not a court’s job.   Contrary to your desire (even though substantiated by others beliefs/quotes), the DJ jurisdictional element is not a unilateral judicial construct manufactured out of whole clothe.  Indeed, the worst can be said of it is that the DJ jurisdictional element is a judicially recognized historical, legal and human rights concept with its roots in the oldest cultures and practices of civilized nations throughout the world.  But it certainly is not a judicial construct made up out of thin air that courts are free to adopt at will and in violation of the general concept that courts are empowered to “interpret,” not “make” laws. 
     
    Again, good luck to you.

  33. TC (not trial counsel) says:

    @RKincaid3 (RK3PO)
    I’m going to hang myself.
    DJ is not a judicial construct, and neither is the separate sovereigns doctrine (or federalism).  I never said that.
    Applying these two together is a judicial construct.
    If you wok up one day and SCOTUS ruled that free speech or any constitutional right does not apply to States because of federalism, you would say that’s their opinion, a construct of law.  Selective incorporation by nature is a construct.
    @David Bargatze
    I am sure the EU is another example, counties are probably able to separately prosecute, say I was standing in Italy and shot you in Austria.
    Despite this, it is not analogous to someone being prosecuted in the USA by local and federal governments.  The point is that DJ should be fully incorporated.