Double jeopardy won't protect Michael Slager

Mistrial declared in Michael Slager trial
Mistrial declared in Michael Slager trial

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Mistrial declared in Michael Slager trial 01:32

Story highlights

  • A mistrial has been declared in the caseof Michael Slager, the Charleston police officer accused of murdering Walter Scott
  • Danny Cevallos: Despite the legal principle of double jeopardy, Slager is likely to face two additional trials
  • Double jeopardy does not apply to a hung jury, nor does it prevent a case from being brought in separate jurisdictions

Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Before Michael Slager, the former North Charleston police officer, went on trial for murder in the death of Walter Scott, his lawyers argued their client was the target of "double-teaming" by the state of South Carolina and the federal government. They called the joint investigations -- and the plan for each jurisdiction to pursue charges against Slager -- "chilling" and "unconscionable."

Judge Clifton Newman disagreed and the case proceeded in state court. On the fourth day of deliberations, he ultimately declared a mistrial. The jurors, consisting of 11 whites and one African-American, returned to deliberate three times Friday after indicating they were deadlocked. One juror, in a note, said he couldn't vote for a conviction and wouldn't change his mind. On Monday, the jurors were dismissed. The state prosecutors are already looking toward a retrial, and Slager's federal trial begins early next year.
Danny Cevallos
Will Slager's defense team now return to its argument that this is "double-teaming"? They should, even though they're not likely to be successful. That's a minimum of three trials Slager may undergo: two state trials and one federal trial. If there are more mistrials, that number could rise. Irrespective of your views of this defendant's guilt or innocence, you might be wondering about where double jeopardy fits in to all this.
In theory, the Fifth Amendment guarantee against double jeopardy prohibits successive prosecutions for the same offense.
The underlying idea behind the double jeopardy clause is that the state, with all its resources and power, should not be allowed to make repeated attempts to convict an individual, thereby subjecting him to shame, expense and ordeal and a constant state of anxiety and insecurity, as well as endless chances that he might eventually be found guilty.
In practice, the double jeopardy clause barely exists.
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Scott's mother after mistrial: It's not over

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Slager's trial is a perfect example. If you asked him, he surely feels as though he's been subjected to a full criminal trial. Yet the double jeopardy clause does not prevent a retrial after a hung jury. Slager can be tried again in state court, and the prosecutor has said he will be.
In fairness, the constitutional guarantee against double jeopardy from its inception envisioned a person being retried if the jury is discharged without a verdict. It's an established part of American law, but it also makes the double jeopardy clause sound a little hollow.
Additionally, under the "Dual Sovereignty doctrine," a state prosecution does not bar a subsequent federal prosecution for the same conduct.
This doctrine acknowledges that the states and the federal government are separate "sovereigns," with distinct interests in criminalizing and prosecuting certain conduct. So then, we can't be tried twice for the same crime, but we can be tried once in each of two separate kingdoms.
Slager is not charged with murder or manslaughter in federal court, but "deprivation of rights under color of law." It's a federal crime for an official like a police officer in the performance of his lawful duties to willfully deprive a person of a right or privilege protected by the Constitution or federal law.
The US Department of Justice's Criminal Section prosecutes cases involving the violent interference with rights defined in the Constitution or federal law. To the DOJ, the use of force, threats or intimidation, especially by a law enforcement officer, is what they look for in deciding to charge a criminal violation of civil rights.
Slager's state court trial ended in a mistrial, but the DOJ would still have been able to charge him with these crimes had he been acquitted or convicted. While it is technically true that a defendant cannot be tried twice for the same offense, successive prosecutions -- even by the same government -- do not violate double jeopardy principles if the second prosecution is for a substantively "different" offense. "Different" offenses each contain at least one element the other does not.
It's a tricky legal definition, but here's how it works: State murder charges, unlike the federal civil rights offense, require proof that a defendant caused the death of another with malice aforethought, either express or implied. The federal civil rights charge, unlike murder, requires proof that the defendant acted under color of law. Each contains at least one element that the other doesn't require. The double jeopardy clause does not bar successive prosecutions for these crimes because they are "different."
So, the federal government certainly can prosecute a defendant in addition to a state prosecution, for the same incident. But it's worth examining whether as a policy matter they should.
The "Petite Policy" is an internal policy of the DOJ preventing federal prosecution for conduct previously prosecuted in state court, unless the matter involves a "substantial federal interest" that was "demonstrably unvindicated" in the state court.
The problem for defendants is this: An internal Justice Department policy is not constitutionally mandated, nor does it vest an accused with any personal rights. As one court has put it, the "Petite Policy is not regarded as anything more than a pious platitude directed to the conscience of the prosecutors."
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In fact, the only party who can enforce the DOJ's policy against successive prosecutions is the DOJ itself, if and when it feels like it, of course.
In the Slager case, the DOJ doesn't feel like the Petite Policy applies. The internal policy has not prevented the defendant from being charged in federal court for crimes arising from the same incident. The Justice Department clearly believes there is a substantial federal interest in civil rights enforcement, and that the state murder prosecution here would not vindicate it demonstrably.
Using American judicial math on double jeopardy, that apparently means Slager might be tried three times -- or more -- for the same conduct.