DOUBLE JEOPARDY

The Constitution prohibits being placed in jeopardy for the same crime twice....except if the feds want to get you. Then all bets are off.  It is the scourge of criminal practitioners. You can win a gun case in state court, which we often do, and then be visiting your client in FDC a week later wherein s/he is indicted and facing a 15 yr min man. That will teach you to go to trial and win. 

In any event, now it's time for guns, poker, a murder or two, the gallows, and a saloon...all things that bring to mind the scholarly author of The Constitutional Calendar...as well as some novels now available on Amazon. Enjoy.

Today’s Constitutional Calendar item concerns double jeopardy – the Fifth Amendment principle that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.”  A well-recognized, if oft-criticized, exception to the rule is that of “dual sovereignty” – the notion that a defendant may be prosecuted by, for example, both a state and the federal government for the same misconduct, if the misconduct constitutes a crime under both sovereign’s laws.  See, e.g., Gamble v. United States, ___ U.S. ___ (June 17, 2019).

On August 2, 1876, Wild Bill Hickok, a legend of the old west, was playing poker in Nuttal & Mann’s Saloon in Deadwood, Dakota Territory, when John “Broken Nose Jack” McCall came up and shot him from behind, killing him in cold blood.  (At the time, Wild Bill was holding two pair, black aces and black eights, referred to ever since among poker players as a “dead man’s hand.”  We never did learn what his fifth card was.)  

McCall claimed that he shot Hickok to avenge his brother, whom Hickok had killed in Abilene.  (There was a Lew McCall who was shot by a lawman in Abilene, but whether that McCall was Broken Nose Jack’s brother, and whether Wild Bill was the lawman who shot him, are two other things we never did learn.)

Deadwood was considered “Indian Territory” – not governed by the federal or any other authority.  An ad hoc “jury” of some local miners and businessmen was convened, and McCall was acquitted.  The Black Hills Pioneer editorialized, “Should it ever be our misfortune to kill a man ... we would simply ask that our trial may take place in some of the mining camps of these hills.”  McCall fled to the  Wyoming Territory, where he repeatedly bragged about killing Hickok in a fair gunfight. But Wyoming authorities refused to recognize the result of McCall's acquittal on the grounds that the court in Deadwood had no legal jurisdiction. Because Deadwood was not under a legally constituted law enforcement or court system, officials argued that McCall could be tried for murder again. Agreeing, the federal court in Yankton, Dakota Territory, declared that double jeopardy did not apply, and ordered a retrial.

McCall was convicted in federal court and hanged.  A few years later the cemetery in which he had been buried was relocated.  McCall’s body, when exhumed, was found still to have the noose around his neck.

I’m told that the killing of Hickok and the capture of McCall is reenacted every summer evening except Mondays at the Masonic Temple in Deadwood.