Last month the Supreme Court granted certiorari in Gamble v. United States, No. 17-646 (link to docket page). The question presented is:

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

That grant could affect the conviction of Army Master Sergeant Timothy Hennis, who is one of only four current residents on military death row (our #2 Military Justice Story of 2016 ) (the others are Gray, Akbar, and Hasan).

In 2010 a general court-martial convicted Master Sergeant Timothy Hennis (U.S. Army Ret.) of three specifications of premeditated murder and sentenced him to death, our #2 military justice story of 2010. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of the Eastburn’s two daughters, in 1985. Hennis was tried three times for those crimes: twice by North Carolina authorities and then finally by a court-martial. The first trial resulted in a conviction and death seantence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989 and Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other active duty retiree – Hennis remained subject to the UCMJ. But advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death.

34 Responses to “SCOTUS reconsidering the separate sovereigns doctrine (that allowed the Hennis re-conviction)”

  1. stewie says:

    Interesting although I am favor of the status quo, which basically reserves the ability to try a case over personnel that we have jurisdiction over but in general declines to do so where a state prosecutes absent exceptional circumstances.

  2. Nathan Freeburg says:

    Except that status quo is a lie. The “exceptional circumstance” includes any case with a 120 component.  
    Heck, a couple years ago I had a forcible rape case where they also threw on some 128’s that my client had been acquitted of in civilian court. Just to help prove up the alleged rape. Acquitted on every spec except for one of the 128’s that he had already been acquitted of.  At least when the panel found that out they gave him the reprimand and minor forfeitures I asked for. 

  3. stewie says:

    No it isn’t. Tossing up some exception to the rule doesn’t disprove the rule. We do not, as a matter of course or routine bring back “any case with a 120 component.” We don’t bring back butt grabs that were tried by a civilian court. We don’t even bring back a large number of serious 120 cases that are tried by a civilian court (because the civilian courts usually only take on the slam dunk cases in the first place). But a forcible rape case? Yeah, that counts just fine as exceptional circumstances.
     
    If you want to argue that the facts in that case should have led them not to prosecute that’s a DIFFERENT argument then the idea that a forcible rape case isn’t an exceptional type case (i.e. extremely serious offense) for consideration/application of the dual sovereigns rule.

  4. Nathan Freeburg says:

    huh? The rape hadn’t been tried by the civilian court. It was purely an end around 404b to get the acquitted 128s in.  That’s not an exceptional circumstance. AUSAs have to follow the Petite policy and the military should too. 

  5. Lone Bear says:

    It seems like exceptional circumstance should be more than the nature of the offense.  It should also require a service connection of some sort.  An article 120 committed against another service member in a case that ended in a hung jury might fit the bill. 
    Full acquittals are very difficult in civilian courts though, not sure that someone should be tried again just because the claim is egregious.  It’s not like our system has some inside scoop to the truth, I’m not sure what purpose a retrial has other than getting a second bite at the apple. 

  6. stewie says:

    A retrial can have multiple purposes.
     
    Hennis is a perfect example, multiple hung juries and a civilian system that gave up.
    You can have corruption, or incompetence in a civilian procedure that resulted in a gross injustice.
    You can have your scenario.
    I am sure folks can think of others.
    That it’s a “second bite at the apple” is self-evident, the question is, why should there be a second bite? There are legitimate reasons, and there are illegitimate reasons, just like anything else.
    The point is, there is nothing wrong with the principle, so long as it isn’t abused or used ROUTINELY willy nilly, and there’s no evidence that it is…it’s a pretty rare occurrence. If it became less rare, then it would be a problem. If some individual case pops up that violates the norms, then that’s an individual problem that needs to be addressed as such, it doesn’t translate it into a systemic problem.

  7. John Marshalll says:

    The question is whether the constitution permits the separate sovereign doctrine, not whether it’s a good policy.  It is emphatically the province of the judicial department to say what the law is, not what it ought to be.

  8. stewie says:

    We’ve practiced the idea that the Constitution in fact permits that for a long, long time. Things can change certainly..abortion was illegal, then it was a constitutional right, and now it appears on the verge of that changing again…the Constitution is ultimately what the Supremes say it is, but I see no reason why it would be unconstitutional. When the Constitution was written, it didn’t apply the BOR to the States…so at least until selective incorporation, double jeopardy didn’t apply to the State’s at all in regards to their own trials.
     
    One of the issues here is having the State usurp the power/jurisdiction of the Federal system (or vice versa) simply by virtue of getting to the courthouse first as it were. Ultimately, I’d be pretty surprised to see CAAF make a sweeping change here.

  9. John Marshall says:

    This is not CAAF; SCOTUS granted review.  Also, the separate sovereign doctrine announced in Bartkus v. Illinois, 359 U.S. 121 (1959) is arguably inconsistent with both the text and original meaning of the DJ clause in light of the British common law system.  Justices care about that there days.  As Justice Karen once said, “we are all originalists now.”

  10. John Marshall says:

    Argh… Justice “Kagan.” Blasted autocorrect.

  11. stewie says:

    I said CAAF, meant SCOTUS my point being I suspect there won’t be a change, and British common law didn’t contemplate a Federal system unless I am missing something so not sure that comparison is the right one, at least not fully.

  12. Ryan Coward says:

    This should be an interesting one.  With 5, soon to be 6 conservative justices, there seems like there might be a split amongst the conservatives between looking re-looking, or even abolishing, the idea embodied by the “sovereign doctrines” principle (which is not specifically spelled out in the constitution) and letting criminals off the hook when they are acquitted in one forum but still could be prosecuted in another.  This one might have an interesting mix for the majority opinion.  But what do I know…

  13. stewie says:

    six? Not unless another liberal justice is dying soon.

  14. Vulture says:

    Over there in Dalmazzi two conservative judges are saying that Courts-Martial are like a dress up show.  Why would they find that kind of system has the substance to overcome the plain text of the Constitution?

  15. Westpointquaker says:

    In Puerto Rico v. Valle, 136 SCt 1863, 1877 (2016), an odd combination of justices, Justice Ginsburg and Justice Thomas argued for a fresh examination of the dual-sovereignty doctrine.

  16. Ryan Coward says:

    Ha.  Never been that strong with numbers.  5 it is.  Still should be a very interesting split.

  17. John Marshall says:

    Stewie, your point might have been a good one before Benton v. Maryland, 395 U.S. 784 (1969).  The British common law system, as it existed at the time of ratification of relevant provisions of the Constitution, is helpful in understanding what the people ratifying would have understood the original meaning of the Constitution to be.  At least that’s what a significant voting block of the current Supreme Court believes.  Plus, those who don’t necessary agree with that analysis, e.g., Ginsburg, may nonetheless join an opinion using that rationale if they believe the outcome is consistent with fundamental principles of fairness.
    As Eugene Volokh recently noted “In Commonwealth v. Sanchez (2016), Justices Ginsburg, joined by Justice Thomas, argued that this doctrine should be reexamined:

    I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current “separate sovereigns” doctrine hardly serves that objective. States and Nation are “kindred systems,” yet “parts of ONE WHOLE.” The Federalist No. 82. Within that whole is it not “an affront to human dignity,” Abbate v. United States (1959) (Black, J., dissenting), “inconsistent with the spirit of [our] Bill of Rights,” to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation. The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.”

    https://reason.com/volokh/2018/06/28/the-double-jeopardy-clause-and-federal-p
     

  18. Bill Cassara says:

    To quote Forrest Gump “I am not a smart man.”  But the constitution says you can’t be tried twice for the same offense. Hennis was. 

  19. stewie says:

    T’aint fair is argued all of the time, sometimes it works, sometimes it doesn’t. And I’ll say again, we’ve been doing this for over a century, so I’d say my “argument” is backed by quite a long time. But, as I said before, all it takes is five Supremes to say something is or is not constitutional, and that’s it, until the next time five Supremes come along.
     
    You can’t talk about “British common law at the time of ratification” and then ignore the other things present “at the time of ratification” like the fact that the BOR wasn’t applied to the States…it was LITERALLY talking about one Sovereign and not the other Sovereigns.
    In fact, “tain’t fair” is a far better/logical argument then trying to square that circle.
     

  20. Nathan Freeburg says:

    The problem with “only in extraordinary circumstances” is that soon they become ordinary.  Whether it’s holding on to the final accounting of pay or ignoring a 32 IO’s recommendation to go forward (which happens all the time no matter what they teach in Charlottesville, Montgomery or Newport) or charging acquitted charges to bolster a he-said, she-said….
    Yes, I’m a defense hack.  The state has the awesome power of life or death…let’s have clear, understandable rules around it.

  21. stewie says:

    Again, you’ve cited one case of this happening. I have seen zero evidence that this is a regular problem.

  22. John Marshall says:

    Well, Stewie, it takes four votes to grant certiorari.  The petition appears to present original meaning arguments primarily, with a  sprinkling of “taint fair” (as you call it).  My guess is that the original meaning arguments were more convincing to the Court because, as you suggest, fairness objections have been around for a while.  Arguing federalism hasn’t generally worked to avoid application of other portions of the BOR. If it did, perhaps we’d all have the option to attend State-run churches (as an example), which were common at ratification but are generally understood to violate the establishment clause now.  In fact, if common law barred serial prosecution at ratification, the arguments for State-run churches are better than those supporting the separate sovereign doctrine, which was announced prior to incorporation of the double jeopardy clause.
     

  23. Cloudesley Shovell says:

    Stewie,
     
    It’s enough of a problem that at least two Supreme Court justices are calling for review of the rule as it currently stands.  Nathan Freedburg said it better than I, the system demands clear rules.  Any layman who reads the double jeopardy clause understands it to prohibit multiple prosecutions, period, per its plain language.  It takes the linguistic gymnastics learned in a career in the law to be able to parse up a plain sentence into tipping the scales in favor of government power and against individual liberty.  I applaud efforts to re-examine the jurisprudence surrounding the double jeopardy clause. 
     
    I happen to have had a client who was not only charged in both state court and under the UCMJ for the same misconduct, he was convicted and sentenced in both (guilty pleas in both courts).  I have no doubt that the threat of dual prosecutions is often used against an accused in plea negotiations, and it has happened that persons have been subsequently prosecuted by another sovereign to ensure the “correct” result, Stacey Koon and Laurence Powell being two cases that leap to mind offhand.
     
    And by the way, contra your statement in your 18 July @718pm comment, the civilian system did not “give up” in the Hennis case after “multiple hung juries.”  He was convicted in the first trial, his conviction was overturned on appeal, and he was acquitted in the second state trial.  He was tried a third time by the military, and convicted.  Three trials, three verdicts, no hung juries, no giving up.
     
    Kind regards,
    CS

  24. stewie says:

    so let me make sure I got this straight. My argument that this has been a rule more or less since 1820 when the first supreme court ruling on the issue sided with it, passed on by literally dozens of prior supremes and probably 1000s of lower level judges during that time, and my argument that the idea of dual sovereigns is very much an American, federalist one, and not a British, unitary one (which again supported by almost two centuries of legal thought and, ya know, prior supreme court decisions) has no power against the fact that 2, count em 2 justices suggested we talked about it plus cert being granted plus what a layperson might understand?
     
    Come on. You don’t like the rule. Got it. That’s fine. You don’t think it’s fair. And maybe enough justices won’t like the rule to make it come out the way you want. Heck, some of the rulings have not been unanimous.
     
    But there is very little evidence that the Founders would be SHOCKED that this principle came out the way it did. That the concept of dual sovereignty between the state and federal levels back then was somehow not contemplated. That the original BOR was not intended to be applied to the states. That, in fact, states violated the principle in their OWN courts up until that amendment was selectively incorporated. That the States only gave up SOME of their sovereignty. That the States still own much of the criminal law arena. That we have areas of overlapping jurisdiction or crimes that cross jurisdictions. All of these things are true, and all of them support the idea of dual sovereignty.
     
    But it isn’t simply because the idea is because two separate sovereigns are involved, it’s because it’s not considered to be the same offense according to the Supremes. It’s also ok for two different states to convict someone for the same offense, because, again, their authority as sovereigns flows from two different sources…i.e. although they gave up some of their sovereignty to the federal government, it does not flow from the federal government and they did not cede all of it. A 7-2 ruling by the supremes. And that was a death penalty case (Heath v Alabama).
     
    I’ll say it again…it ain’t fair is the only argument that has logical merit IMO. It rarely works, but they are courts of law and equity so “tain’t fair” certainly works some of the time and is always a valid reason to find something impermissible. But this argument that somehow the Founders were thinking of the States AT ALL in drafting the BOR (and we absolutely know they were not) or the double jeopardy clause is with all due respect, baseless. They were thinking of making sure the Federal government had the requisite reins on their power. The one sovereign.
     
    To say otherwise opens up a whole host of problems. Now State A can override the legitimate interests of State B or the Federal Gov or vice versa by rushing a case to trial first and thus blocking all future acts under an overly broad interpretation of double jeopardy. Alabama could decide to try a KKK suspect of killing a minority to a sham trial with an acquittal to stop Georgia or the Federal gov from having a legitimate trial for example.
     
    The Feds and many States (and the military) have rules in place to limit the occurrence of these kinds of cases. There’s no evidence I have seen of a rampant problem of frivolous retrials. If there were, then one could make a due process argument against it, or revisit the double jeopardy issue by arguing, it ain’t fair. That’s the proper mechanism for dealing with it.

  25. John Marshall says:

    TL;DR. I guess we shall what happens next June.

  26. AnnoyingProle says:

    I’m with Stewie–if they’re going to change the precedent, seems like it most likely would be through 14th amendment incorporation of the limitation onto the states.
     
    It would be pretty anti-States’ rights, but I bet the Whitehouse would love this doctrine to go away right now, given how New York and others are standing by to prosecute Manafort and the like in the case of a pardon.

  27. Vulture says:

    I’m pretty sure the “taint fair” crowd would have something to say about your KKK scenario.  Also the 11th Amendment would not be allowed to be taken to an absurd result.  Due process and sham don’t make good bedfellows.
     
    The U.S. Constitution’s preamble doesn’t get a lot of mileage.  But when it does it is hard to step away from the big words that start it.  Doesn’t sovereignty arrive at us by those words? – for the states, for the country, for home rule cities.  Where is there sovereignty in the military?  Oh, I understand the separate society.  But that isn’t sovereignty and unless we are letting the meaning of words change, the mere discovery of new evidence is not adequate to overturn the plain text of the Constitution. 

  28. John Marshall says:

    Thought I was done. But someone is wrong on be internet. AnnoyingProle:  the double jeopardy clause has ALREADY been incorporated in Benton (1969), which I cited above.  That’s why Stewie’s Federalism argument doesn’t really hold water—it is based on a rationale that the Supreme Court rejected.  In doing so, it has eroded the argument that separate sovereignty allows serial prosecution.

  29. AnnoyingProle says:

    Good point, I was being lazy in writing as I was musing about the benefit this offers to the President.  Obviously DJ itself applies to an individual State’s prosecution for an offense.  But incorporation of the DJ clause means that they’re bound by it–there’s no obvious implication that it incorporated their sovereignty into the Fed’s, unless the 14th amendment is taken to that incorporation extreme.
     
    Still the potential for such abuse highlights some other results that could occur, at least for the politically connected.  Corrupt VA Governor cuts a plea deal with Virginia DOJ to plead guilty to a misdemeanor, thus precluding federal felony corruption charges?  Or perhaps he’s pardoned by his successor (the Lt Governor), thus precluding any action?  Charge Manafort, then pardon or deal the case, immunizing him from NY or other action?  Does Jimmy Trial Counsel’s withdrawal and dismissal with prejudice in a case prevent a state from moving forward on a rape case?

  30. kf says:

    I invoke the “if Stewie and kf agree, then they are correct” rule and agree with Stewie on this.  Different sovereigns with different interests have long been held to have a right to prosecute.  If not, then the DOJ would not need the Pettite policy, right?  And, different sovereigns have different rules and protections for the accused and/or victims.  So, why should one sovereign be forever barred from prosecution because the other sovereign was unable to take custody of the accused first?  It’s not the non-prosecuting sovereign’s fault if the other sovereign screws up the case, particularly in military cases where the military’s interest differs slightly from a State’s interest.
     
    For instance, in US v. Tillery, the accused was convicted of shooting and killing an AF NCO, with whom’s wife the accused was having an affair.  He was apprehended in North Carolina, charged, tried in NC court, and the NC Judge dismissed the case based on the Defense’s motion for directed verdict.  Certainly the military had an interest in seeking justice where one Servicemember killed another Servicemember.  He was tried and convicted at Ft. Benning and received LWP.  Don’t know why the NC Judge dismissed the case.  Don’t really care.  All he had to do was accept the discharge offered to him while he was awaiting trial in NC and he would not have been subject to different sovereigns because this has been the law for quite a while.
     
    I’ve also seen the other side.  Had a client facing assimilated weapons charges and military violations at Court-martial.  Filed a motion to dismiss for prosecutorial misconduct, and the SJA got the assimilated charges dismissed.  After the full acquittal, an infamous Army JAG who was the CoJ at the time got my client indicted in Federal Court on the weaopns charges previously dismissed without prejudice.  He did his annoying best, but my client was once again acquitted and the saga ended…sort of…..the OSJA then attempted to place a LOR in my client’s fiche, but his Regimental Commander went to the mats for him and they backed down.
     
    Yeah, I felt bad for my client and I was pretty upset with that CoJ and thought his civilian Federal defense counsel should have filed a motion to dismiss for DB grounds as an appellate issue even though they were completely separate offenses, but having been on both sides of this issue, I believe that different sovereigns ought to be able to protect their interests independently.  Had the Framers used the term “actions” rather than the term “Offence” then I think that would be a game changer. 
     
    But, Black’s (6th ed.) defines “Same Offense”:  As used in a provision against double jeopardy, the term means the same crime, not the same transaction, acts, circumstances, or situation. 
     
    By the way, for those interested in who the CoJ, this footnote of an opinion where he was reversed is interesting: 
     
    Let me tell you a story, Government. Obviously, I am not going to consider this in my ruling. I tried a machine gun case in Federal District Court two tours ago with the Federal District Judge for a lieutenant who smuggled a machine gun … back from Iraq. The Federal District Judge in the suppression motion, which I opposed, said “Well, how would you expect any Soldier in front of a person in position of authority in the military just to walk away when they are expected to stay there because that person outranks them?” And he suppressed the statements under the Fifth Amendment. And I thought about that. I thought that was very interesting that Soldiers, obviously, don’t really have an opportunity to just walk away when they are in front of their commander or first sergeant…. And, obviously, I am not going to consider that in this case. This is a separate case. But what do you think about that, that a Soldier, especially a private, can’t just walk away from somebody from their chain of command when you are in the military? You are expected to stay there and talk to that person.
    U.S. v. Kirk, III, ARMYMISC20100443, 2010 WL 3544577, at *7 (Army Crim. App. July 28, 2010)

  31. John Marshall says:

    Evaluate:
    1. When Stewie and KF agree they are correct.
    versus
    2.  When Justices Thomas and Ginsburg agree they are correct, and likely to convince three other justices to agree with them.
     

  32. stewie says:

    “the double jeopardy clause has ALREADY been incorporated in Benton (1969), which I cited above.  That’s why Stewie’s Federalism argument doesn’t really hold water.”
     
    Holds water just fine. The fact that states cannot violate the DJ rule in their own courts does NOT translate to a rejection of the dual sovereigns concept. They are completely unrelated. What it DOES do is point out that if it took almost 200 years to get around to incorporating that right, then perhaps, just maybe, it wasn’t clearly applicable at the time of the Constitution and thus arguing British common law (where they only had the one sovereign) ain’t the way to go.
     
    Again, due process (t’ain’t fair) is a fine argument if you want to make it, and it might work if five or more SC justices agree.
    Also, everyone here knows that granting cert does not equate to a rule being overturned. So citing Thomas and Ginsburg as “likely to convince three other justices to agree with them” isn’t really based on anything real. Maybe they will, maybe they won’t, but I suspect, that if they do, it will be based on fairness arguments, not the idea that English common law prevents it in a federal system.
    And even if they do, it still brings up OTHER issues the court will have to address…who wins if State A and State B both have a valid claim? Who wins if the Feds and a State both have a valid claim? What if a State acts in bad faith (the KKK example)? Is it merely first to file? First to convict? What exactly counts as “the same offense?” Is it an elements test? Or is it an act test? Because if it’s the former, and kf and I agree it probably is, that’s a loophole you can drive a dozen trucks through, heck, if it’s a 133 or 134 offense, that’s all you need to turn it into a separate crime.

  33. kf says:

    John Marshall,
     
    So, I’m…..like, um…….Clarence Thomas in that above scenario, right?

  34. stewie says:

    I’d always pictured you as more of an RBG.

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