officers - The Black Vault

•• •
THE KING COPS AND DOUBLE JEOPARDY
Rule of Law
By Charlotte Allen
Reprinted with permission of The Wall Street Journal ©1992, Dow Jones & Company, Inc. All rights reserved.
The acquittal of the four police officers accused ~f using
-excessive force against Rodney King is proving to be JUSt the
beginning of the case against them. On Friday, California
Superior Court Judge Stanley M. Weisberg required one ofthe
four officers, Laurence Powell, to undergo retrial. And the day
after the officers were acquitted on April29, the Justice Department,
under the prodding ofPresidentBush, convened a federal
·grand jury to consider whether to indict all four officers on
federal charges.
The Rodney King case is turning into a series of dubious
prosecutions in the name of what is supposed to be a worthy
cause. Officer Powell, for example, was acquitted on all but one
of the counts against him; on that final count, the jury deadlocked
with an 8-4 vote in favor of acquittal. Under these
circu.m:stances, many judges would decide that a.retrial on that
single charge alone would not be worth the time and effort
unless the prosecutor claimed to have some new. evid:nce.
lndeed a California statute designed to cover cases m which a
·jury virtually exonerates the defendant permits such dis~ssals
"in the interest of justice." But in the King case, Judge Weisberg
declined to order the dismissal.
The most dubious aspect of the King case, though, is the
prospect of federal charges against the four officer~. The Calif?rnia
state jury acquitted the other three officers tned along Wlth
Mr. Powell on all of the charges arising from the videotaped
beating, which included assault with a deadly weapon .and
assault under color of official authority, both of them senous
felonies. Bringing a second round of criminal charges over the
same acts after the first round has resulted in acquittal seems
unfair. Were the federal government not involved, it would be
not just unfair but unconstitutional, because the Fifth Amendment
says that no one "shall be subject for the same offense to
be twice put in jeopardy of life or limb."
Despite the Fifth Amendment's flat-out ban on second prosecutions,
a ban that has its origins in English common law, the
Supreme Court has long recognized an exception to t~e double
jeopardy clause when two different governments are mvolve~,
such as two states or a state and the federal government. This
is called the "dual sovereignty doctrine," and it has come under
much criticism from civil libertarians as a mere ruse: switching
prosecuting authorities in order to get a second shot at someone
who has managed to elude the first.
When the Supreme Court gets a dual-sovereignty case, its
·conservative justices typically vote for a broad reading of the
·doctrine, while its liberals cast t4eir ballots in ~av.or of rest.r!-ctions.
This has led to .a. twisted line of court rulings that Chief
.Justice William Rehnquist once called "a veritable Sargasso Sea
·which could not fail to challenge the most intrepid judicial
navigator."
The leader of the liberals for decades on double jeopardy was
Justice William Brennan. In the majority opinion 'in the 1990
case of Grady vs. Corbin, which Mr. Brennan wrote shortly
.before he retired from the bench, the justice interpreted the
clause to bar a second prosecution for all cases involving proof of
·the same conduct even when the crime charged the second time
around contained additional elements. (The Grady case involved
dual prosecutions by the same state-a defendant who
·originally pleaded guilty to drunk driving was la~r charged
with vehicular manslaughter - and has no bearmg on the
federal-state dual sovereignty doctrine.)
Civil libertarians' criticism of dual sovereignty has persuaded
a majority of states to decide t~at, ~der the double je'o:pardy
clauses in their own state constitutions, they would declme to
press charges where federal pros~cutors ?ad move.d fi~st. Furthermore
the Justice Department m 1960 Issued gwdelines that
bar feder~l prosecutors from pursuing anyone who has already
been the subject of state charges except in rare case~ wf1ere a
"compelling federal interest" w.ould be served .. Permisston for
such prosecutions must be obtamed from W~shin~?· . .
The guidelines still do not satisfy theAmencan CIVIl Liberties
Union which regards dual sovereignty as a legal fiction. "It's not
the ca~e that you can trade a person's constitutional rights for a
compelling reason," says Susan Herman, a professor at Brooklyn
Law School and a board member of the national ACLU.
Or rather, the ACLU regards dual sovereignty a~ a legal
fiction when the accused are not policemen. In the King c~se,
however it seems to be swinging around to a more Rehnqwstlike
point ofvi~w. The ACLU's SoutJ:em. C~on:ia chapter has
already broken ranks with the orgamzation s national office and
joined the call for a federal prosecution. Even Ms. Hermll:n sa~s
that, while she does not agree with the Southern Califorma
office's stance she finds it understandable, because there ought
to be some wa~ for federal prosecutors to get involved in the King
case. The national ACLU is pushing for an amendment to the
civil rights laws that would allow the Justice Department to sue
police departments for violating the rights of racial and other
minorities.
The federal government's most famous use of dual sovereignty
came in the case of the three civil rights workers, Ja.m~s
Earl Cheney, Andrew Goodman and Michael Schwerner, .slam m
Mississippi in 1964. After a state c?urtjury a~parently Ignored
23
overwhelming evidence and acqwtted ~he kill:rs o~ murder
charges, the Justice Department leape~ mto actiOn w:th ~ successful
civil rights prosecution. The action seemed satisfying at
the time - a triumph over local bigotry - but it vo:as in fac~ a
dangerous experiment in assuming guilt first, holding the tnal
later. It set a precedent for assuming that the federal government
ought to step in if an unpopular white manages~ sec~e an
acquittal in a highly publicized state criminal ca~e mvol~g .a
black victim. While this may not be legal double Jeopardy, It IS
certainly functional double jeopardy. .
There is little risk of the four accused officers gomg unpunished.
They face a ruinous civil damage suit by Mr. King and
disciplinary charges by the Los Angeles Police Department. M~.
King, on the other hand, is at little risk of being punishe~ f~r ~s
offenses: normally, a robbery parolee arrested for drunk drivmg
and speeding who violently resisted arrest would likely face
reincarceration.
Over the years, and in the name of justice, we have grown
increasingly willing to devise vague and murky federal offenses
- RICO, cop.spiracy, wire fraud and mail fr~ud are a few
examples - to put bad people behin~ bars Without actually
having to convict them in the old-fashioned way. These extensions
of federal authority over local life and local problems are
symptomatic of a growing inclination to bend legality in order to
hunt down perceived wrongdoers. The ends may be lofty, but _!he J '-.
means verge on the totalitarian. '-{l{ p.,, l+\ ..- // Cf-7