By Canadian Press

Supreme Court seems likely to keep double jeopardy exception

Dec 6, 2018 | 9:46 AM

WASHINGTON — The Supreme Court seemed likely Thursday to preserve a constitutional rule that allows state and federal governments to prosecute someone for the same crime.

Several justices expressed concern about upsetting the long-standing rule that provides an exception to the Constitution’s ban on trying someone twice for the same offence, even as Justice Ruth Bader Ginsburg described it as a “double whammy” for criminal defendants.

The court is considering the case of federal prison inmate Terance Gamble. He was prosecuted by Alabama and the federal government for having a gun after an earlier conviction for robbery.

A ruling for Gamble could have a spillover effect on the investigation into Russian meddling in the 2016 election. But that issue did not come up at all in Thursday’s arguments.

Instead, justices focused on the practical effects that might result from siding with Gamble.

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“Look at the door we’re opening up,” Justice Stephen Breyer said, mentioning federal prosecutions for crimes of racial violence and domestic violence against Native American women that could be imperiled with a ruling for Gamble.

To that list, Justice Department lawyer Eric Feigin added the massacres in a Charleston church in 2015 and a Pittsburgh synagogue in October as examples in which federal murder charges might have to be dropped if Gamble were to prevail. Thirty-six states that include Republican-led Texas and Democratic-led New York also are on the Trump administration’s side.

The session provided an opportunity for new Justice Brett Kavanaugh to talk about the importance of the court adhering to earlier rulings, an issue he addressed repeatedly during his confirmation hearings as Democratic senators worried Kavanaugh would vote to overturn the Roe v. Wade abortion rights ruling.

A party asking to overturn an earlier ruling must “not just show it’s wrong, but that it’s grievously wrong, egregiously wrong,” Kavanaugh said. Justice Elena Kagan pointed out that close to 30 justices have voted at some point to uphold the exception Gamble wants to eliminate.

Gamble’s case drew the court’s attention after Ginsburg and Justice Clarence Thomas wrote in 2016 that the exception to protection from double jeopardy should be reconsidered. Justice Neil Gorsuch indicated at arguments that he might also be on Gamble’s side. At least one other justice had to vote to hear the case.

One reason for taking a fresh look, Gorsuch said, is that “with the proliferation of federal crimes…the government’s ability to seek a second conviction is a problem.” Liberal and conservative groups urged the court to rein in successive prosecutions for the same crime in large part because of the marked growth in federal criminal prosecutions in recent decades.

Gamble was arrested in 2015 for possessing a 9 mm handgun and faced state and federal charges. He pleaded guilty in state court and tried to have the federal charge dismissed. When that failed, he pleaded guilty in federal court as well, with the idea of mounting the constitutional challenge that is now before the Supreme Court.

Gamble is not scheduled for release from prison until 2020, nearly three years later than he would have been freed from conviction on state charges alone, his lawyer, Louis Chaiten, wrote in court papers.

The relevant portion of the Constitution’s Fifth Amendment says that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

Chaiten disputed that a ruling for his client would carry harmful practical consequences. He told the justices that even a slight difference in the crime charged by state and federal prosecutors would be enough to eliminate double jeopardy concerns.

He also disputed that federal civil rights prosecutions would be affected. Civil rights charges to fight crimes of racial violence have been a key tool for federal prosecutors, especially when Southern juries were unwilling to convict defendants. Another high-profile example was the successful federal prosecution of Los Angeles police officers who had been acquitted of state charges in the beating of Rodney King.

Gamble’s is the relatively rare case that violates the Constitution, Chaiten said.

A ruling for Gamble could be relevant if President Donald Trump were to pardon someone implicated in special counsel Robert Mueller’s probe and a state wanted to pursue its own charges against that person.

Supreme Court lawyer Tom Goldstein joked at a Washington event before the term began in October that the high court case should be called New York v. Manafort, a reference to former Trump campaign manager Paul Manafort. Trump has refused to rule out an eventual pardon for Manafort, who has been convicted of federal financial fraud and conspiracy crimes. It’s by no means certain that the high court ruling will affect future prosecutions.

A decision in Gamble v. United States, 17-646, is expected by late June.

Mark Sherman, The Associated Press