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Fifth Amendment: Double Jeopardy Essay, Research Paper

Double jeopardy is the prosecution of a person for an offense for which he or she has already been prosecuted. The double jeopardy clause, which is in the Fifth Amendment of the United States Constitution, was designed to protect an individual from being subject to trials and possible convictions more then once for an alleged offense. The idea was not to give the State too much over the individual, this way no individual will be subject to embarrassment, expense, and ordeal against being tried for an alleged offense more then once. It also reduces the possibility of someone innocent being found guilty. The double jeopardy clause of the Fifth Amendment embodies three protections to criminal defendants; (1) it protects against second punishment for the same offense after acquittal, (2) it protects against second punishment for the same offense after conviction, and (3) it protects against multiple punishments for the same offense. The clause not only protects the integrity of final judgment, but it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government convictions.

There have been many cases involving double jeopardy in the United States. The three cases I will be highlighting are Green v. United States, 355 U.S. 184 (1957), Crist v. Bretz, 437 U.S. 28 (1978), and United States v. DiFrancesco, 449 U.S. 117 (1980).

In the Green v. United States (1957) case, Everett Green was indicted by a District of Columbia grand jury in two counts. The first count was that he had committed arson by maliciously setting fire to a house. The second count accused him of causing the death of a woman by the alleged arson. Green entered a plea of not guilty to both counts and a jury tried the case. The trial judge told the jury that they could find Green guilty of arson under the first count and either first degree murder or second degree murder under the second count. Second degree murder, as defined in District Code, is killing of another with predetermined malice and is punishable by imprisonment for a term of years or for life. The jury found Green guilty of arson and of second degree murder. Green was sentenced to one to three years’ imprisonment for arson and five to twenty years’ imprisonment for murder in the second degree. Green appealed his conviction of second degree murder.

At the retrial, Green was tried again for first degree murder under the indictment. At the beginning of the trial, he raised the defense of former jeopardy, but the court overruled his plea. He was found guilty and was sentenced to a mandatory death sentence. At this trial, Green was tried again for first degree murder even though the original jury had found him guilty of second degree murder. The second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution’s Fifth Amendment Double Jeopardy Clause.

After the original trial, it was unquestionable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy should have been accepted by the trial judge of the second trial period.

The Government argued that Green waived his right of former jeopardy by making a successful appeal. The Government also argued that Green extended his original jeopardy so that when his conviction for the second degree murder was reversed and the case ended, he could be tried again for first degree murder without placing him in new jeopardy. It was also said that in order to secure the reversal of the conviction of one offense, Green must give up his valid defense of former jeopardy not only on that offense, but also on a different offense for which he was not convicted and which he was not involved in his appeal. He must exchange his constitutional protection against a second prosecution for an offense punishable by death as the price of a successful appeal from a conviction he was only sentenced five to twenty years imprisonment. Green’s second trial for first degree murder placed him in jeopardy twice for the same offense in violation of the Fifth Amendment, and the conviction was reversed to secure Green’s rights under the U.S. Constitution.

The Crist v. Bretz (1978) case involves the federal rule of ruling the time

when jeopardy attaches in a jury trial is binding on Montana through the Fourteenth Amendment. Merrel Cline and L.R. Bretz were brought to trial in Montana court on charges of grand larceny, obtaining money and property by false pretenses, and several counts of preparing or offering false evidence. A jury was selected within three days and recorded and sworn in. Cline and Bretz filed for a motion drawing attention to the allegation in the false-pretense charge that the defendant’s illegal conduct began on January 13, 1974. The prosecutor moved to amend the information saying that “1974″ was a typographical error and that the date should have been January 13, 1973, the same date as the alleged in the grand larceny count. The trial judge denied the motion and dismissed the false-pretense count. The prosecution asked the trial judge to dismiss the entire information so that a new one could be filed. That motion was granted by the judge and the jury that was sworn in was dismissed. New information was filed that charged the appellees with grand larceny and obtaining money and property by false pretenses.

After a second trial jury had been selected and sworn into duty, the appellees moved to dismiss the new information saying that the Double Jeopardy Clause of the United States and Montana Constitutions secured a second prosecution. The motion was denied and the trial began. Cline and Bretz were found guilty on false-pretenses count and sentenced to terms of imprisonment.

Following the trial, Cline and Bretz brought a habeas corpus proceeding in a Federal District Court saying that there convictions had been unconstitutionally obtained because the second trial violated the Fifth and Fourteenth Amendment guarantee against double jeopardy. The federal court denied the petition maintaining the Montana statute saying that jeopardy does not attach until the first witness is sworn in. Cline and Bretz appealed pursuant seeking review only of the holding of the Court of Appeals that Montana is constitutionally required to recognize the constitutional guarantee against double jeopardy.

The questions placed on the reargument is that the rule that jeopardy attached in jury trials when the jury is sworn is constitutionally valid since the double jeopardy prohibition of the Fifth Amendment applies to the States through the Fourteenth Amendment. The Court held that the Double Jeopardy Clause prevented a second prosecution after a first trial had ended. The reason for maintaining when the jury was selected and sworn lies in the need to protect the interest of an accused in retaining a chosen jury.

The federal rule as to when the jeopardy attaches in a jury trial is not a settled part of the constitutional law. It is a rule that both reflects and protects a defendant’s interest in retaining a chosen jury. It was ruled that the application of the Double Jeopardy Clause through the Fourteenth Amendment, as said by the Court, was attached when the first jury was selected and sworn.

In the United States v. DiFrancesco (1980) case, Eugene DiFrancesco was convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, and of conspiring to commit that offense in a jury trial in 1977. At another trial in 1978, he was convicted of damaging federal property. He received eight years on the charge for damaging federal property, five years on the conspiracy charge, and one year on the unlawful storage charge. DiFrancesco appealed the conviction to the Court of Appeals for the Second Circuit, and the US sought review of the sentences imposed upon him as a dangerous special offender. The Court of Appeals unanimously acknowledged the convictions. By a divided vote the court dismissed the Government’s appeal on double jeopardy grounds.

At the earlier racketeering trial, the evidence showed that DiFrancesco was involved in an arson-for-hire scheme in Rochester, New York that was responsible for eight fires. At the second trial, the evidence showed that he participated in the 1970 “Columbus Day bombings”, including the bombing of the federal building at Rochester.

Prior to the first trial, the Government filed with the trial court a notice alleging that DiFrancesco was a dangerous special offender. The notice recited the Government’s intention to seek enhanced sentences on racketeering counts in the event DiFrancesco was convicted at trial. After he was found guilty, a dangerous offender hearing was held. At the hearing, the Government relied upon the testimony offered at the trial and upon public documents that attested to other convictions of DiFrancesco for the Columbus Day bombings, for loansharking, and for murder.

The District Court made findings of fact and ruled that DiFrancesco was a dangerous special offender within meaning of the statute. The court found that DiFrancesco’s criminal history reveals a pattern of habitual and knowing criminal conduct of the most violent and dangerous nature against the lives and property of the citizens of this community.

The United States then took its appeal saying that the District Court abused its judgement in sentencing that amounted to additional imprisonment for the respondent. The dismissal of the Government’s appeal by the Court of Appeals rested upon it’s conclusion that to subject to a defendant to the risk of substitution of a greater sentence is to place him a second time in jeopardy of life or limb.


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