Today's Double Jeopardy Developments: Trayvon Martin and Edward Roach

My newly acquired Twitter account has clued me in on some interesting double jeopardy-related events that happened today.

UCLA Law Review Discourse has posted an essay by Adam Harris Kurland, entitled Not the Last Word, but Likely the Last Prosecution: Understanding the U.S. Department of Justice’s Evaluation of Whether to Authorize a Successive Federal Prosecution in the Trayvon Martin Killing, (and what a title that is!)  Here is the abstract:

In the aftermath of George Zimmerman’s state court acquittal in the Trayvon Martin killing, the U.S. Department of Justice is considering whether to bring federal criminal charges against Zimmerman arising out of the same incident. While such a dual or successive prosecution does not violate double jeopardy, the determination whether the federal government should bring charges turns on whether the Petite Policy, an internal U.S. Department of Justice Guideline, has been satisfied. Professor Kurland contends that because the requisites of the Petite Policy, that the prior state trial must have left a substantial federal interest demonstrably unvindicated, cannot be established, a federal prosecution should not be authorized. Rather, more appropriate and constructive nonprosecutorial alternatives should be pursued to address the myriad of criminal justice and social policy concerns impacted by the tragic incident.

The essay is short, interesting, and engaging, and its coverage of the Department of Justice's various considerations in deciding whether to prosecute a case is highly informative.  As the abstract indicates, the author notes that federal prosecution is appropriate in some circumstances, but the Zimmerman case lacks typical justifications for such a secondary prosecution.

Still on the subject of double jeopardy, but in an entirely different case, the Supreme Court today denied certiorari in Roach v. Missouri.  In Roach, the defendant, Edward Roach, was charged with the state crimes of unlawful use of a firearm and being a felon in possession of a firearm.  Roach was also charged by the United States with violating a federal statute prohibiting possession of firearms by felons.  Roach pled guilty to the federal charge and asked that the state felon possession charge, arguing that this prosecution was based on the same facts that underlay the federal charge.  The Missouri trial court dismissed that count, and Roach pled guilty to the unlawful use of a firearm charge.

On appeal, the Missouri Court of Appeals reversed the dismissal of the possession charge, noting that under the "dual sovereignty" approach to double jeopardy, a conviction in federal court would not foreclose a state prosecution based on the same facts.  Roach tried to appeal the Court of Appeals' decision to the Missouri Supreme Court, but was denied review.

Roach then petitioned for review in the United States Supreme Court, arguing that the Missouri Court of Appeals' dual sovereignty justification violated the Fifth Amendment's Double Jeopardy Clause.  The cert petition was drafted by the UCLA School of Law's Supreme Court Clinic and signed by Stuart Banner.  A copy of the petition is available here.  At the time the petition was filed, Orin Kerr noted that the petition raised some very interesting historical arguments, and argued that from an originalist perspective, the Court's longstanding precedent permitting federal and state prosecutions for the same offense was inconsistent with the original meaning of the Fifth Amendment.  The Constitutional Accountability Center filed an amicus brief in support of Roach - and also focused on historical arguments against the dual sovereign approach.

The significance of the Roach case was not lost on observers after the Zimmerman verdict, with Eugene Volokh noting the Roach petition's relevance on whether the Department of Justice should prosecute George Zimmerman.

Ultimately, it appears that Roach's history-based arguments failed to convince the Justices to revisit their longstanding precedent.  At the same time, the lessons that Kurland draws from the Zimmerman case indicate that while dual prosecution may occur in some circumstances, barriers in the Department of Justice stand in the way of this being a widespread practice.