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Supreme Court Takes Another Bite Out of Constitutional Protections Against Double Jeopardy

The Supreme Court recently weakened constitutional protections against double jeopardy in Blueford v. Arkansas, a homicide case. The 6-to-3 decision was written by Chief Justice Roberts. It allowed a defendant to be retried for murder -- not just manslaughter -- even though the jury forewoman had reported that the jurors had unanimously rejected murder charges and were deadlocked on the lesser manslaughter count. Prominent criminal defense lawyer Scott Greenfield comments here. Paul Enzinna discusses the case at Point of Law.

In the Blueford decision, more of the liberal justices were protective of double jeopardy protections than conservative justices. But in other contexts, liberals are even more eager to sacrifice constitutional protections against double jeopardy -- even where a jury has rejected not just some charges (as in the Blueford case) but all charges against the defendant.

In 2009, a liberal Congress passed, and President Obama signed into law, an expansion of federal hate crimes law partly designed to enable federal prosecutors to reprosecute people who had already been acquitted of hate crimes in state court. (This is permitted under a loophole in double-jeopardy protections known as the “dual sovereignty” doctrine.) Liberal Supreme Court Justices had earlier proved less sympathetic than conservative justices to defendants subjected to federal prosecutions after a state court acquittal in Koon v. United States (1996), a case with racial overtones. The defendants' convictions in that case were sustained based on "dual sovereignty," but the Court reduced their sentences, citing the successive prosecutions. In politically charged cases, some people just can't accept a not-guilty verdict or dropped prosecution. As law professor Gail Heriot has noted, some supporters of the 2009 federal hate crimes law "even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”