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The police officers in the Rodney King case were tried and acquitted in State court, then tried and convicted of essentially the same crime with a different nam

The police officers in the Rodney King case were tried and acquitted in State court, then tried and convicted of essentially the same crime with a different name in Federal court, and the courts declined to say this violated the Double Jeopardy clause. It's not necessarily the case that the courts will allow the same thing when the State seeks to try a defendant after they are acquitted in Federal court or pardoned by the President, but it seems difficult to me to distinguish the two kinds of cases, so I'm assuming it's more likely than not that if POTUS pardons Manafort and NYS wants to try Manafort, they will be able to. IMO the Rodney King case was a very bad precedent. It was very bad politics for the Federal courts to do otherwise, I understand, but it was not a good decision. The SCOTUS essentially held that a) Dual Sovereignty means the Double Jeopardy clause doesn't apply, b) that the courts can use the double jeopardy condition as a mitigation in sentencing. (b) can be seen as weakening the Dual Sovereignty doctrine, but (a) can be seen as a disaster because the 5th Amendment is incorporated against the States, and the Double Jeopardy clause is in the 5A, so allowing the Dual Sovereignty doctrine to overcome Incorporation doctrine seems like a gross error that puts the entire Incorporation doctrine in... jeopardy. Shall we now say that only parts of the 1A, 2A, 4A, 5A, are incorporated against the States? Which parts? This invites more litigation. Of course, that didn't happen, IIUC. There's been no litigation arguing that if Dual Sovereignty overrides Incorporation in one case, it might in others. But it could yet happen.

throwawaygh 6y ago
Reasonable. But returning to Snowden, “one executive wants to pardon and the other doesn’t” is pretty much by definition a case of differing interests. IMO this question is more clear-cut than typical DJ questions. It’s just really hard for me to believe that POTUS could protect Snowden from prosecution in state courts via pardon. At the very least, a DOJ that wants Snowden in prison can side-step this whole question by leaving it to a state and keeping things out of federal court...
- cryptonector 6y ago
  The case up-thread was Manafort -- NY State, IIRC, wants him in jail and may prosecute if pardoned. I'm not sure which State laws Snowden might have violated, or which States might want to prosecute him. BTW, I can see an argument against double jeopardy in the Federal->State direction as opposed to the State->Federal direction: the former, if allowed, could see a defendant tried as many times as there are States + 1, and that can't possibly be in the interest of Justice.
  - throwawaygh 6y ago
    > The case up-thread was Manafort Oh, I see. I was speaking into the even further up-thread context of Snowden :p Sorry about that. > I'm not sure which State laws Snowden might have violated E.g., http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/HawaiiElectronic.pdf http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/Haw... > I can see an argument against double jeopardy in the Federal->State direction as opposed to the State->Federal direction: the former, if allowed, could see a defendant tried as many times as there are States + 1, and that can't possibly be in the interest of Justice. + a lot more than 1 because of Native American jurisdictions It's a good pint, but the crime would have to occur in overlapping jurisdictions, which doesn't apply in the case of Manafort. I think even in the case of Snowden it'd be difficult to argue for jurisdiction outside of HI and maybe any states he passed through with HDDs. I just searched for drug trafficking and computer fraud cases that resulted in multiple charges for the same act in several states. I couldn't find any particularly egregious cases. I'm not even sure how important this is in the case of computer crime; jurisdiction gets hairy really fast.
    - dragonwriter 6y ago
      > a lot more than 1 because of Native American jurisdictions Native American jurisdictions generally only have criminal jurisdiction over their own members for actions on their own land, that jurisdiction is Constitutionally an application of federal sovereignty, so where it applies it doesn't add an additional possible prosecution, just replaced (or provides an additional option) for one of the existing possible prosecutions. So, there's no double jeopardy impact.

throwawaygh 6y ago

Reasonable. But returning to Snowden, “one executive wants to pardon and the other doesn’t” is pretty much by definition a case of differing interests. IMO this question is more clear-cut than typical DJ questions. It’s just really hard for me to believe that POTUS could protect Snowden from prosecution in state courts via pardon. At the very least, a DOJ that wants Snowden in prison can side-step this whole question by leaving it to a state and keeping things out of federal court...

cryptonector 6y ago
The case up-thread was Manafort -- NY State, IIRC, wants him in jail and may prosecute if pardoned. I'm not sure which State laws Snowden might have violated, or which States might want to prosecute him. BTW, I can see an argument against double jeopardy in the Federal->State direction as opposed to the State->Federal direction: the former, if allowed, could see a defendant tried as many times as there are States + 1, and that can't possibly be in the interest of Justice.
- throwawaygh 6y ago
  > The case up-thread was Manafort Oh, I see. I was speaking into the even further up-thread context of Snowden :p Sorry about that. > I'm not sure which State laws Snowden might have violated E.g., http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/HawaiiElectronic.pdf http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/Haw... > I can see an argument against double jeopardy in the Federal->State direction as opposed to the State->Federal direction: the former, if allowed, could see a defendant tried as many times as there are States + 1, and that can't possibly be in the interest of Justice. + a lot more than 1 because of Native American jurisdictions It's a good pint, but the crime would have to occur in overlapping jurisdictions, which doesn't apply in the case of Manafort. I think even in the case of Snowden it'd be difficult to argue for jurisdiction outside of HI and maybe any states he passed through with HDDs. I just searched for drug trafficking and computer fraud cases that resulted in multiple charges for the same act in several states. I couldn't find any particularly egregious cases. I'm not even sure how important this is in the case of computer crime; jurisdiction gets hairy really fast.
  - dragonwriter 6y ago
    > a lot more than 1 because of Native American jurisdictions Native American jurisdictions generally only have criminal jurisdiction over their own members for actions on their own land, that jurisdiction is Constitutionally an application of federal sovereignty, so where it applies it doesn't add an additional possible prosecution, just replaced (or provides an additional option) for one of the existing possible prosecutions. So, there's no double jeopardy impact.