If At Fifth You Don't Succeed - With Update

I've written before about the counter-intuitive protection against double jeopardy.  The protection is right there, in the Fifth Amendment.  (I've put it in boldface so it's easy to find.)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The way the public tends to think of the rule (and it is a rule), I think, is that you can't be tried twice for the same crime.  That's not true.  Really, really, really not true.  You can.  Twice and even thrice.

Here are the basics of what they can do.

• You can be tried for the same act by the state or local government and by the federal government or the military under what's known as the Dual Sovereign Doctrine.
• You can be tried for a second time if the verdict from the first time was reversed on appeal for any reason other than that there was not enough evidence to convict.
• You can be tried for a second time if the first trial ended in a mistrial that was not intentionally caused by the prosecution. 
• You can be tried a second time if the first trial ended in a hung jury.
• You can be tried a second time if you're in the state of Ohio and you can't convince the trial court you can't, because although double jeopardy is protection against a second trial, in Ohio, you have to have the second trial and lose before an appellate court can say that you shouldn't have had to hire another lawyer and go through the horrors of a second trial in the first place. (Yes, I know that's confusing.  So is the Ohio approach.  Confusing and stupid and wrong.  And locked in place by the Ohio Supreme Court, though sometimes you can go into federal court to prevent the state from trying you again.)

Here's how Chief Justice Rehnquist accounted for this sort of mess in United States v. Richardson (1984).

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic.

Sure enough.  And as he points out, the particular non-application of the Double Jeopardy Clause to hung juries goes back to United States v. Perez in 1824.  For at least 186 years now, we've been pretending the Double Jeopardy Clause doesn't mean what it says.  And the reason, of course, is one we all know.  This time, Justice Stevens in Arizona v. Washington.

The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws. 

Let's take a deep breath and parse that for a moment.

The government's job in a criminal case is to convince the jury beyond a reasonable doubt that the defendant is guilty.  When the government fails to do that, the defendant is to be acquitted and discharged.  It may not try again.  When the jury does not unanimously agree that the government has proved guilt beyond a reasonable doubt, the government can try again because of "society's interest" in allowing the prosecutor to take another shot at it.

I can see Clarence Thomas now, clawing at the paper trying to get the rule changed to accord with the language of the Constitution.  And Scalia.  And all those folks who say the Constitution means precisely what it says, no more and no less.

Well, maybe less.

OK, the law is what it is.  And bizarre and wrong-headed though it be, we have to deal with it.  But might there be some limit?

Apparently, the answer is a resounding "No."

Case in point, from Doug Berman this morning, quoting a CNN report.

Curtis Flowers has stood before five juries in the past 13 years on capital murder charges, accused of killing four people in a Mississippi furniture store.  This week, prosecutors are hoping his sixth trial will be the last.

I'm with them.  Of course, I'm with Flowers in wishing the fifth time (or the fourth) would have been the last.

Flowers was convicted the first three times.  The first two times he was sentenced to die.  Those two convictions were reversed by the Mississippi Supreme Court because the prosecutors introduced improper and overly prejudicial evidence against Flowers.  The third conviction was reversed by the Mississippi Supreme Court because the prosecutor kicked blacks off the jury for being black.  The fourth and fifth trials ended with hung juries.

This time, the prosecutor won't be able to use the testimony of a pair of jailhouse snitches.  They'd testified that Flowers confessed to them.

The two later admitted to lying under promises of monetary reward from law enforcement.

Ooops.

Doug Evans, Flowers' personal Javert (he prosecuted Flowers the first five times and plans to do round six), says it's

a straightforward case of a disgruntled worker taking out his anger against his former employer.

Albert Einstein is frequently cited (though it seems nobody has pinned down where and when he might have said it) as the one who first said that insanity is doing the same thing over and over and expecting different results.  You know, that special kind of logic Rehnquist talked about in Richardson.

I don't have any idea whether Flowers committed the acts of which he's accused.  I'm damn well sure that it's time for the government to give up trying to prove it.  And no matter what the Supreme Court's been saying for 186 or more years, the Constitution is on my side.

MUCH BELATED UPDATE - Flowers was convicted and sentenced to die again at the 6th trial.  The jury was out for all of 30 minutes.  The lone black Evans did not manage to kick off the jury this time (unlike at trial 5) did not hold out.  The case is on appeal.