Dear and Beloved Colleagues,
This month, I write to you from the fog of eternal social distance. Me and my big orange O’Connor’s are snuggled up in bed together with a cup of tea and a burning desire to get to know one another since, you know, we have time on our side. There’s a sink full of dishes I’m ignoring, a toddler in the next room clomping around in my long-neglected high heels, and a feral cat noisily spraying his potent urine all over the outside of my bedroom window since one of the forsaken neighbors literally leaves 50 lb. bags of cat food open on his front porch. But inside my bedroom is a picture of calm, just me and the tea and the Code.
Somehow this thing always knows just what I need to hear. The next section is always exactly on-point. Like dipping into the Bible (ok, not so much the Old Testament with all the begats and the wrath), it always seems weirdly prescient. Today’s reading is §1.10-JEOPARDY. In a time so reminiscent of “Groundhog Day” where each day is the same as the last, jeopardy seems especially poignant. Even more, I am actually struggling with a jeopardy issue in a trial division case in which I seem to have gotten myself entangled recently.
No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.
The rule seems extremely straightforward, but it turns out it comes with a long and bizarre series of asterisks that ensure that almost no one really understands what jeopardy is, except probably our wizened TCDLA presidents. Fortunately, those guys are on our side. Unfortunately, everyone else thinks they know what jeopardy is because the rule looks so deceptively simple.
A long time ago when I was a baby public defender, someone gave me a job for which I was not yet ready. Across the stormy ocean, very far from home, and without access to a legal research database, I hacked (with a blunt machete, dear friends, not a computer) my way into the law.
On that tiny island that used U.S. law and precedent, I represented a man who had lost all hope. He was an expat from the Philippines working for a pittance at a local tourist hotel. The job did not live up to what was promised, and he was homesick, broke, and struggling with undiagnosed mental health problems while living in a filthy, sweltering barracks with other workers. One day he grabbed a knife and threatened to kill himself in front of his only friend there, a fellow countryman who tried to talk him out of it. As the talking seemed to not be working, the friend struggled with my client over the knife, and the client, in the struggle, stabbed the friend in the neck inadvertently. Horrified and shocked, he jumped out of the window of the barracks, hoping to hit the sharp rocks beneath him. Of course, friends, you know what happened. He landed in the water. A local man saw him and quickly rescued him, and then he became my client.
Locked up in the small psychiatric cell at the local hospital, my client grieved and wept. The single psychiatrist in that country was also from the Philippines and she did her best to counsel and comfort him. I could tell she wanted to help him, but she found him competent, and I believed her. The DA offered to dismiss charges if he agreed to deportation. The family of the dead man petitioned the Philippine government to press murder charges and render harsh punishment. I tried to imagine what that was in the Philippines and I decided it was probably more akin to a lynching than a trial.
I sat on my porch with some other American lawyers I knew, drinking lukewarm Asahi beer and smoking harsh Korean cigarettes. “I think we have to prosecute him here, and then jeopardy attaches, and the Philippines can’t do anything to him.” I felt brave. We had double jeopardy protections; the Philippines had double jeopardy protections (I had bothered to check). That’s when I heard, for the first time, about the Separate Sovereigns doctrine. My heart lurched and for the millionth time that week, I realized again how inadequate I was.
Eventually, after a series of negotiations, the Philippine government agreed to confine my client to a mental hospital and not try him again if he were adjudicated of something in the island nation (not the Philippines) where charges were brought. I pleaded him to an involuntary manslaughter charge, and his sentence was suspended for ten years, with the only condition being that he leave the country and not return. Later, the Philippine consul brought me a box of instant coffee packets and a large pineapple. I am still unsure whether that gesture was personal or professional, but it was better received than the melting sack of frozen fish I once found on my coffee table after I woke up from a nap.
This is my round-about way of telling you, dear friends, that double jeopardy is weird. If you catch any sort of indication of it, much like a whiff of seafood coming from your living room on a warm, equatorial afternoon, it is a good idea to investigate immediately.
Stay safe and let me know if you need anything.