GA. Prosecutor Wants Feds To Bring Death Case Against Nichols

Georgia Prosecutor Paul Howard is a man on a mission. Having failed to get the death penalty for Brian Nichols, he's not giving up. He's going to ask the feds to bring a death penalty case against Nichols on the charge of killing a federal officer, a different offense than the one charged in Georgia. One of the victims in the Atlanta case was a customs officer whom Nichols killed in his home.

He's also going to seek a change in state law for future cases -- he'll ask them to remove the requirement of a unanimous verdict in cases where the victim is a law enforcement officer, the killing occurred during the course of a robbery or while the offender was in custody. The Georgia House passed such an amendment earlier this year to a Senate bill providing for life without parole in certain cases, but the Senate refused to adopt it in the final version that became law.

He complains the state doesn't get a level playing field in death cases. That's ridiculous. [More...]

It's the defense that doesn't get a level playing field because prospective jurors who oppose the death penalty aren't allowed to serve on juries. In every death case, the prosecution has a leg up because they start with a death-qualified jury.

If any changes are made in the death penalty procedures, it should be that jurors are life-qualified instead of death-qualified. The test should be whether they could impose a life sentence even if they find the defendant guilty. Any juror who says they could not vote for life over death simply because of the heinousness of the crime should not be allowed to serve.

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    um (5.00 / 1) (#1)
    by Nasarius on Sat Dec 13, 2008 at 02:11:20 PM EST
    Federal prosecution would apparently not constitute double jeopardy since it would be a federal prosecution and the just-ended case was a state prosecution.

    How does that work? How does:

    nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

    get interpreted to mean "well, it's okay as long as different levels of government do it"?

    The point is long settled by the Supreme Court (none / 0) (#2)
    by Peter G on Sat Dec 13, 2008 at 04:35:14 PM EST
    , for better or for worse, but settled nonetheless, that an offense against the laws of a state (such as Georgia) is not the "same offense" under the Double Jeopardy Clause as an offense against the laws of the United States.  The feds are really not "another level of government"; under our "federal system," the national govt is a different government, or (to use the technical vocabulary) "a separate sovereign."  In situations where you really do have a different level of government (such as a city or county ordinance violation vs. the state criminal law) there is double jeopardy protection from prosecution more than once for "the same offense."  

    At the same time, the U.S. Dept of Justice has had a policy for the last 50 years or more (known as the "Petite" Policy, from the name of the first U.S. Supreme Court decision in which it was mentioned) not to exploit the "dual sovereign" doctrine to prosecute someone previously acquitted or convicted in a state prosecution for the same conduct, unless there is a special "federal interest" involved.  The Petite Policy is not judicially-enforceable by the accused; it is solely a matter of discretionary policy by the federal prosecutors.  

    Last point, many states have a more protective rule under their own statutes or state constitution, rejecting the dual sovereign doctrine.  Those states' laws disallow the prosecution of someone who has previously been convicted or acquitted by a different state, or by the feds, for the same conduct.


    gee, i know i'm no (none / 0) (#3)
    by cpinva on Sun Dec 14, 2008 at 08:38:31 AM EST
    supreme, but this clause seems very, very straight forward:

    nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

    no exceptions listed for state vs federal prosecutions, etc. the plain language of the clause says it all, neatly and concisely.

    don't get me wrong peter g, i'm not questioning you, merely attempting to wrap my mind around the concept of such a seemingly (and rarely) simple, yet eloquently stated, rule being bent and twisted by the courts.

    a case such as the present one, in which a losing prosecutor, not content to accept the outcome, seeks another bite at the apple, is exactly what the author's of the bill of rights had in mind, when they inserted that clause into the 5th amendment.

    i'd bet money mr. howard has higher public office aspirations.

    It's just not the "same offence" (5.00 / 1) (#5)
    by Peter G on Sun Dec 14, 2008 at 12:15:04 PM EST
    First, cp, you can always question me or anyone else on TL.  Don't hesitate.  Anyone can be wrong, and it is my understanding of the rules here that no one is discouraged from suggesting that someone else is wrong, if they do it logically and courteously.  

    Since I already fully answered your question about the "seemingly ... simple" language of the Double Jeopardy Clause, and obviously did not manage to communicate it clearly, let me try to explain another way.  Truth is, your question touches on a very fundamental point about the US Constitution.  Before you can understand the Bill of Rights you have to understand that the Constitution allocates and limits the powers and authority of the federal government vis a vis the states.  When "the People" formed the "United States," they created a system of "federalism" where the states retained a significant measure of sovereignty (that is, the powers ordinarily possessed only by an independent nation).  One of those is the power to make and enforce their own laws (including criminal laws), so long as they don't attempt to override federal law.  The way the Framers would have understood it, a crime under federal law is simply and could not be the "same offence" (to use the original spelling in the Fifth Amendment) as a criminal prohibition on the same conduct under state law.   (An "offense" in other words, is a particular legal violation, not a description of a kind of bad behavior.)

    The Constitution does impose certain limits on the power of the states to make criminal laws (look at Article I, section 10), but notice that it does this completely separately from the limits it imposes on Congress in making federal law (Art. I, sec. 9).  So when the Bill of Rights was added, although some of it, like the Fifth Amendment, is written in the passive voice (compare the First: "Congress shall make no law ..."), it is pretty universally agreed that these newly explicit limitations on government power to infringe on human rights were addressed to the power of the federal government only.  Omitting the same limits on the states was not an "exception" to the rules laid down; it was part and parcel of the Framers' political philosophy. (Only in the Fourteenth Amendment, after the Civil War, did the federal Constitution for the first time prohibit the states from depriving persons of life or liberty "without due process of law" (that is, contrary to fundamental American norms of fairness).  

    So the question here is, if the feds were to prosecute Nichols now for murder of a federal agent (the Customs agent, who was the fourth person killed), would the feds be violating the DJ clause by prosecuting someone who was already convicted of the "same offence"?  No, because the federal crime is not the "same offence" as murder under the laws of Georgia.  


    Doesn't work the other way around (none / 0) (#4)
    by atlanta lawyer on Sun Dec 14, 2008 at 09:41:50 AM EST
    This isn't the first high-profile example.  Recall the Rodney King verdict of not-guilty in state court followed by a successful federal prosection.

    Ga is one of the states that interprets the double jeopardy protections of its state constitution to be broader than the U.S. Constitution, thus barring State prosecution for the same crime after a federal prosecution. Of course, that doesn't bar federal prosecution after Ga. is finished, even if someone is aquitted in State Court. Ga.'s constitution limits Ga. Courts, not federal.

    Jeralyn, your last paragraph, I think, conflates two issues.  I know in Georgia, and my general understanding of "Death qualification" in general, is that juror will be dismissed for cause either if they say that upon a guilty verdict they are unwilling to consider any of the three (in Georgia) options (life with parole, Life W/O, and death,), the legal reasoning being simply that if jurors won't consider all three options, why have a jury decide at all?

    Now certainly in Georgia (perhaps in other states) a defense attorney is not going to be allowed to lay out all the aggravating circumstances they expect the state to prove and then ask the jurors if they'd consider life. I think there is a difference b/t "Generally, can you consider life even if you find him guilty of the charge" and "If my client did X, the details and heinousness of which are A, B, and C, could you still vote for life?" Perhaps in a high-profile case like this one, it's effectively a distinction w/o a differnce.

    One further note on municipal/county/state prosecutions, I believe the understanding is that local jurisdicition aren't really "sovereigns" but derive their power from the State.