Blagojevich’s Jeopardy

Everyone seems to be taking as a given that America has the right to put Governor Blagojevich on trial a second time for the charges on which the jury failed to convict him the first time. “This is not double jeopardy, by the way, because the jury was hung; Blagojevich was not acquitted,” is the way one editorial put it. It has certainly been routine that retrials are permitted when juries are unable to reach a verdict. But this newspaper, for one, has long been vexed by this logic, and the spectacle of the prosecutor’s failure in the Blagojevich case is as good a time as any to mark the point.

The prohibition against placing someone in what is called double-jeopardy is American bedrock. It is laid down in the Fifth Amendment. The Fifth establishes that no person, except in cases arising in the land or naval forces or the militia in actual service in time of war or public danger, shall be held to answer for a capital or other infamous crime unless on indictment of a grand jury. Then come the famous words: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” By our lights — members, as we are, of the plain language school of the law — this is a problem for the prosecutors.

Was not Blagojevich in jeopardy, after all, from the moment the trial commenced? Or the moment the jury went out? The courts have not been unanimous in respect of when jeopardy actually attaches, but neither Blagojevich, nor any other criminal defendant in America, now or ever, has been under the slightest burden to prove anything. The sole burden is on the government. It, and only it, must prove — and beyond a reasonable doubt — that the accused is guilty. Save for the one charge on which the former governor was convicted, the government failed. It could not prove its charges. So perceived the jury. How does one get from there to the notion that Blagojevich was not in jeopardy?

Clearly the Blagojevich case is not the first time this poser has been presented. One famous, and early, case arose in the early 19th century from the southern district of New York. It involved one Josef Perez, who was accused of murder. When he was put on trial, the jury couldn’t agree and was dismissed. When the government sought to re-try him, he appealed on grounds that he’d already been in jeopardy once. In 1824, the Supreme Court, in a case written up by none other than Justice Story, sided against him. It ruled that “in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. . . ”

“Such discharge,” added the court, “constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.”

There it has stood for nearly two centuries. Is that a reason not to look yet again at the plain meaning of the Constitution? This is not about any particular prosecutor. Even in the case of an uncontroversial prosecutor, the issue would arise. But what better catalyst for such a fresh look than Patrick Fitzgerald? His record is such that no less an institution than the Wall Street Journal is calling for him to either resign or be removed, and one can imagine that he is as exactly the sort of misanthrope the Founders had in mind when they put up a protection to shield ordinary Americans from being twice put in jeopardy.

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So Blagojevich need not be deterred from asserting his Fifth Amendment rights. Feature what happened with the Sixth. For nearly two centuries, Americans were routinely thrown into the dock on criminal charges and put on trial without defense counsel. Then one day, an ex-con who had been accused in Florida of robbing a pool hall declared that the Supreme Court said he had the right to a lawyer. The trial court overruled him. He was convicted and sent to prison, whence he filed his famous pauper’s petition. The Supreme Court assigned the case to Abe Fortas, and when it ruled for the prisoner, Clarence Earl Gideon.

One of the great lessons of that case is that the plain language of the 6^th Amendment, on which the court ruled, had been staring the court in the face for nearly two centuries. It says that in “all criminal prosecutions” the accused shall “enjoy the right” to “have the Assistance of Counsel for his defence.” How in the world could the authors of the Constitution have made it any plainer? And how much plainer could the Founders have made it than when they wrote that no person shall “be subject for the same offense to be twice put in jeopardy”?