Why is the federal government bringing a criminal civil rights charge against Derek Chauvin? The key charges a federal grand jury handed up are for the same offense — killing George Floyd by pressing a knee on his neck — on which Chauvin has already been convicted by Minnesota. He already faces a long stretch. Why isn’t the new indictment a violation of the Constitution’s double jeopardy clause?
We don’t want to be misunderstood here. We’re not disputing the finding, by a jury of Minnesota citizens, that Chauvin is guilty of second degree murder and other charges. Nor are we commenting on the challenges to that verdict on other grounds, such as protests — and a comment by President Biden — that might have cowed the jury. We have already issued our editorial reckoning that a finding of guilty seemed reasonable.
Our issue here is double jeopardy. Nor is this first time we have raised the issue of double jeopardy when federal civil rights law is being used to trump state proceedings. We did this when the federal government was preparing to bring a criminal civil rights case against Lemrick Nelson after a state jury in Brooklyn, in one of the most shocking miscarriages of justice in our city’s history, acquitted him of murdering Yankel Rosenbaum.
What bothered us in the Lemrick Nelson case, as in this (and, among others, the Rodney King case), is what we see as an abuse of civil rights law. The practice of bringing federal civil rights charges after a state jury has acted arose from the legal war against Jim Crow. It was a time when a white man in the dock for killing a black man was, in the South, often never truly in jeopardy. For it was all too likely that he would be acquitted.
Yet how could anyone say that Derek Chauvin wasn’t in jeopardy when he was put in the dock in the District Court Court of Minnesota? There was an aggressive prosecution before a multi-racial jury selected after a careful voir dire. The jury brought in a unanimous verdict of guilty on all charges. So what is the logic of Derek Chauvin being tried all over again for kneeing to death a bound and subdued George Floyd?
This is not a Republican or Democratic issue, nor a right-left contretemps. Yet these double-jeopardy cases have been sand in our hat-band for years, most recently in the Supreme Court case known as Gamble in which Justices Ruth Bader Ginsburg and Neil Gorsuch issued a ringing defense of the clause in which the Fifth Amendment ordains that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”
In an editorial called “Gorsuch, Ginsburg — and Gamble,” we noted that the case involved an “ex-con who was pulled over in a traffic stop in 2015 at Alabama. A gun was found in his possession in violation of both Alabama and American law. Gamble pled to the state charges and drew a year. Then the federales turned around and charged him again for the same offense, drawing additional time for the same deed.”
The Supreme Court rejected Gamble’s appeal in a seven-to-two decision that reminded us of President Clinton’s line about how it depends on what the meaning of “is” is. “The justices,” we noted at the time, “reckon there were two offenses, one carrying the blasted gun in Alabama and the other the same gun at the same time in the United States.” We wondered whether the United Nations might also be able to charge him.
Justices Ginsburg and Gorsuch both issued dissents. Justice Ginsburg warned of “frittering away” Gamble’s liberty “upon a metaphysical subtlety, two sovereignties.” Justice Gorsuch warned against the government trying someone “until it’s happy with the result.” The Chauvin case is more bizarre still — what, after all, is there about the existing conviction that would leave the government unhappy?