Saturday, August 03, 2019

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.

10 comments:

  1. Hickock was compelled to take the seat with his back to the door when no one else would give up thei seat facing the door. Capt. Massie was shot in the wrist by the same bullet that went through Hickock, a role later reprised by John Connolly in Dallas in 1963

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  2. "That will teach you to go to trial and win." Rump, you are more prescient than you think. A history lesson. In 1992, the feds tried Al Sepe for racketeering and lost. There was a hung jury on the RICO conspiracy count. The government argued that they could bootstrap all of the acquitted conduct in the first trial back into the conspiracy count for an expected retrial. Judge Jose Gonzalez said no in a very commonsense like opinion: federal criminal trials are not the equivalent of mulligans. But the 11th said HOLD ON!!!. Reversed! Goodhart flips and Sepe pleads guilty and takes an 18 month vacation in Homestead. For those of you sitting in an overpriced coffee shop somewhere in midtown or Coral Gables and have no clue what I am talking about, ask your grandfathers or better yet, their former mistresses, and you will get an earful.

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  3. THE CAPTAIN REPORTS:

    WORD OF THE DAY GUYS .........

    We regularly receive an email from the Word of the Day Guys and, since they were so popular on this BLOG at one time, we thought it a good idea to bring them back.

    Today, the Word of the Day is AQUIVER.

    Used in a sentence:

    "I was all aquiver when I heard the news that my favorite jurist, Judge Robert Luck, was back in the GJB for a guest appearance".

    Now, fellow Blog readers, you can attempt to use the Word of the Day in a sentence.

    Cap Out .....

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  4. Why the gratuitous comment about a mistress? some things are better left unsaid.

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  5. Loved Al Sepe. One of a kind. When Al Goodman would appear in his court, AL would stop court and ask Goodman do one of his magic tricks. U do not see characters like this anymore. It was a much different time.

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  6. I was there.

    Judge Sepe was INNOCENT.

    Get Project Innocence on the phone for me.

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  7. I met Judge Sepe when I was in the 6th grade. He was an ASA and came to my school for career day. He inspired me and I knew then what I wanted to be when I grew up.
    David S. Markus

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  8. Hey - it’s COBIA fishing season.

    Who’s up for a charter boat trip?

    Maybe the best dressed fisherman / lawyer? Topsiders or Tretorns??

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  9. Hey Cobia Boy - Do yourself a favor and call Capt. Dennis to go fish for 15 pound Mutton Snapper. Much tastier. Cobia is so 1990’s. Get with it ...
    PS. You better start paying attention at the Judge’s Conference and stop thinking about fishing, trips to Europe, your table at Joe’s and the grilled fish tacos as the Chief Judge’s after party at the Naples luxury hotel you are staying at! By the way, who pays for this “Judge vacation”?

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  10. I was all aquiver when I heard Judge Sayfie calling the Shumie over the public address system so that all persons at the Gerstein Justice Building could go to food truck of The REN (a venue) parked behind the building and filled with the highest quality food and drink fare anywhere.

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