Remember that movie Double Jeopardy? Ashley Judd’s character chases down her husband after he framed her for his murder. When she finally confronts him, she brandishes a gun in his face and tells him that she could publically shoot him and no one could touch her. Tommy Lee Jones, ever the law enforcement official, enters the scene and confirms that she can’t be retried for her husband’s murder because of the double jeopardy clause of the Fifth Amendment.
Even if you weren’t a lawyer when the movie opened in 1999, you probably knew there was something wrong with its legal conclusions. Indeed, aside from the fact that the murders would have been two separate incidents, there is an important exception to double jeopardy called the “separate sovereigns” doctrine. Under the doctrine, different governments (state or federal) can prosecute a defendant for the same crime. So double jeopardy would not have stopped Louisiana from prosecuting Ashley Judd’s character for killing her husband because her first conviction for the crime was in Washington. In fact, in Heath v Alabama, SCOTUS upheld a defendant’s convictions from both Georgia and Alabama for the exact same murder. (The murder occurred in Georgia, not far from where defendant and the victim (his wife) lived in Alabama.)
However, the separate sovereigns doctrine was challenged last year in Gamble v United States. Mr. Gamble was charged with felony-firearm by both Alabama and the federal government based on the same traffic stop. Mr. Gamble unsuccessfully argued in the lower courts that the subsequent federal prosecution violated the double jeopardy clause, and the case is now before SCOTUS. After oral arguments, SCOTUSblog predicts the doctrine will stand. Although Justices Ginsberg, Thomas, and Gorsuch questioned the doctrine’s continuing validity, it seems the majority of the justices favor keeping it. They were concerned about a wide range of issues if the doctrine were abandoned—from trying terrorists who are acquitted abroad to prosecuting those who violate civil rights domestically.
I recently sat down with Professor Dave Moran to discuss Gamble
and other recent SCOTUS criminal law cases. To hear Dave’s analysis, check out the Criminal Law Update 2019