Unclear on the concept
Armchair lawyering ahead. Amendment V:
. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . .
Yet:
The Kentucky Supreme Court on Thursday overturned a murder conviction in the 1994 sniper death of a University of Kentucky athlete, saying the prosecutor committed a “flagrant” violation of the U.S. Constitution.
The court ordered a new trial for Shane Ragland, who was sentenced to 30 years in prison in 2002 in the killing of football player Trent DiGiuro.
The “flagrant” violation was that the prosecutor mentioned that Ragland did not testify against himself, which is also his right under that pesky amendment mentioned above.
November 18th, 2004 at 2:42 pm
I don’t get it. What does the double jeopardy clause have to do with the privilege against self-incrimination?
November 18th, 2004 at 2:44 pm
SU,
A retrial after a decision was reversed on appeal does not violate the double jeopardy clause, b/c the reversal invalidates the prior verdict.
November 18th, 2004 at 3:23 pm
Oh, I get it. Karlicko’s right, of course. I doubt Ragland’s lawyers have chutzpah to appeal a conviction, demand a new trial, and then claim that the new trial they asked for violates double jeopardy.
The law may be a ass, but it’s not THAT big of an ass.
November 18th, 2004 at 3:25 pm
I’ll have to defer to your knowledge but find it disturbing that the prosecution can get a do over. Is this like first grade flag football?
November 18th, 2004 at 3:59 pm
Not all. The prosecution won at trial. They’re not the ones who wanted the do over. The defense asked for a do over, so they got one. What else was the court supposed to do?
November 18th, 2004 at 5:03 pm
From what I gathered, the violation was the prosecutor (in his closing remarks) noting that the defendent did not testify as if it was an admission of guilt.
November 18th, 2004 at 5:21 pm
Manish, that is correct. It was clearly an error (based on prior rulings by the U.S. Supreme Court, not based on a straightforward reading of the Constitution), and it was arguably a reversible error (as a bare majority of the court ruled). But the normal remedy in a case like that is to do exactly what the court did: reverse and remand. The only time it would be proper to substitute a not guilty verdict for the guilty verdict is if the constitutionally permissible evidence was so thin that it could not form the basis for any reasonable jury to convict. That wasn’t the case here, and rarely is.
November 18th, 2004 at 10:08 pm
X..I can see your point.
November 19th, 2004 at 8:51 am
Double-jeopardy was waived when the defendant asked for a new trial.
November 19th, 2004 at 2:57 pm
If the gov lost at trial, they wouldn’t be able to get a new trial based on error in the defendant’s favor. This, perhaps, is one reason why courts err on the side of disfavoring the defendant– he has redress on appeal whereas the prosecution does not.