Saturday, December 8, 2018

GateHouse: SCOTUS to decide Double Jeopardy issue in shadow of pardon debate

Matthew T. Mangino
GateHouse Media
December 7, 2018
Gamble was 19-years-old in 2008 when he was convicted of robbery in Alabama. Robbery is a felony in Alabama and according to state law, and federal law, a felon is not permitted to possess a firearm.
Fast-forward seven years and Gamble is pulled over for a traffic violation. Police in Alabama find a handgun and charge him as a “felon-in-possession” at the same time federal prosecutors charge Gamble under a similar federal law.
Gamble pleaded guilty in state court in Alabama and was sentenced to one year in prison. Subsequently, a federal court sentenced him to 46 months in prison for the same crime. Gamble made a constitutional challenge to the federal charge arguing it violated the Double Jeopardy Clause.
The Fifth Amendment to the U.S. Constitution states that no person can “be subject for the same offense to be twice put in jeopardy of life or limb,” prohibiting multiple trials for the same offense.
Gamble’s claim was dismissed by a district court, and his conviction affirmed by the 11th U.S. Circuit Court of Appeals.
In its decision, the 11th Circuit found that the “Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns.”
The “separate sovereigns” doctrine allows both federal and state prosecutors to charge an individual under the theory that the state and federal governments are separate government entities and being charged separately with state and federal crimes is not Double Jeopardy.
Gamble took his case to the U.S. Supreme Court, which agreed to hear his case. Supreme Court justices do not hear every case that is brought to them. A petitioner must get at least four justices to vote to bring the case before the High Court.
The question is can he get five votes to overturn the so called separate sovereigns doctrine? Gamble’s attorneys got a chance on Thursday to make their case, in front of nine Supreme Court justices.
Gamble’s lawyers argued that “Permitting consecutive prosecutions for the same offense simply because different sovereigns initiate them ‘hardly serves’ the deeply rooted principles of finality and fairness the Clause was designed to protect.”
Attorneys for Gamble argued that the founder’s intentions for the Double Jeopardy Clause and the Supreme Court’s interpretation are incompatible. Essentially, the founding fathers did not intend to permit a person to be tried twice for the same offense in any court and the Supreme Court, through the years, failed to fully appreciate the founders’ intent.
Some justices made it clear that those decisions by prior courts are the very reasons not to overturn the separate sovereigns doctrine. Justice Elena Kagan raised the issue, noting that the separate sovereign’s doctrine is 170 years old and 30 justices over the years have supported it. She suggested that stare decisis, the adherence to prior rulings, is at bottom a doctrine of “humility;” we don’t want to overrule an earlier decision or rule “just because we think we can do it better.”
The case has garnered a lot of interest as a result of Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 presidential election. Although Mueller’s name was never mentioned during the argument the implication is that the Court’s decision could have an impact on how much protection a presidential pardon provides.
Although the president’s power to pardon is enormous under Article II, Section 2 of the U.S. Constitution, he can only provide a pardon for federal indictments or convictions.
For instance, the president could pardon Paul Manafort with regard to his federal conviction, but a state court, which would be out of the reach of a presidential pardon, could pursue the very same charges for which Manafort, or others, were already tried, convicted and pardoned in federal court.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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