Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure, than to take rank with those poor spirits who neither enjoy much nor suffer much, because they live in the gray twilight that knows neither victory nor defeat.

Theodore Roosevelt, The Strenuous Life

By , on August 18, 2010

Legal Views, Opinion


Perhaps other law students were surprised to learn that the constitutional right protecting us from double jeopardy does not protect us from another trial if:

1. The jury was hung at the first trial, neither convicting nor acquitting.

2. We are tried in a state court following a federal trial, or more commonly, tried in a federal court following trial in a state court. The latter course was followed in some of the racial murders in the South that occurred during the civil rights movement, where the alleged perpetrators were acquitted in state court but later convicted of violating the civil rights of their victims in federal court, sometimes many years later.This applies even for crimes based on the same acts, as in those cases. The reasoning is that the states and the federal government are separate sovereigns. That may have been so after the Declaration of Independence, but it seems to be completely inaccurate since the Civil War and the FDR administration eroded the authority of the states.

The former governor of Illinois is stuck with the first problem. Mr. Blagojevich stands convicted of obstruction of justice for lying to FBI agents. (Had he read my earlier posts, he wouldn’t have spoken to those guys – however, my blog was not up when that happened!) Now the prosecutor is promising to try him again for several charges on which the jury deadlocked.

Although I believe Blagojevich’s conduct was scandalous, low class, and likely illegal to an extent greater than he stands convicted today, I do not believe it is fair or just to make him prepare another defense.  How can defendants afford two strong defenses when most of us are bankrupted by one? The double jeopardy protection right we have should be meaningful for all of us, rich or poor.



2 Comments to “Double Jeopardy and Rod Blagojevich”

  1. Bob says:

    I think Rod Blagojevich got shoed away by the political establishment of Illinois that did not like him. The government of Illinois is not for the people, it is for the government. The people were not unhappy. Blagojevich’s comments were political posturing and course talk that is probably typical, or more maturely, not voiced. If he wanted something in return for the Senate seat, it was probably for the people of the state, not just himself, though it could sound differently. And what was to be for himself was just no doubt in the end political advantage to better serve his adgenda as elected official representing the people of the state. I don’t see a real crime committed. They ‘apprehended’ him too soon. It was a railroad job, because the other governing officials did not like how he ran the state. It wasn’t business as usual and comfortable for them – the way they like it.

    When you live in Sodom and Gomorrah, and you try to make inroads for yourself, the masses in power make it difficult for you – you are stepping on their turf.

    This is I believe what happened with Mr. Blagojevich. They were / are so against him that they are trying him again. The people did not demand this second trial either.

    Like passing health care that the people did not want, eventually, if you try hard enough, a conviction could be had.

  2. Reply1121 says:

    His PR campaign adds a new dimension to the jurors’ deliberations: sentence Blago to prison or sentence themselves to watching him on reality television at infinitum.

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