When Double Jeopardy Means No Jeopardy

By: James Trusty

In March of 2019, on the afternoon in which Paul Manafort was sentenced to 7 ½ years in prison by the U.S. District Court in Washington, D.C., New York County District Attorney Cyrus Vance unveiled an indictment against Manafort for mortgage fraud and similar state offenses. As rumors had begun to swirl that President Trump might pardon Manafort’s two federal prosecutions, Vance announced that, “No one is above the law in New York,” with both his comments and timing of the indictment making it clear that Vance was specifically trying to thwart the impact of any pardon for Mr. Manafort. Vance’s backup prosecution would be dismissed long before Trump’s eventual pardon of Manafort took place in late 2020.

The federal constitution’s Double Jeopardy provision within the Fifth Amendment is a bedrock principle of criminal justice, and one in which people have an instinctive grasp – the government only gets one shot at you for each criminal episode. Once you are acquitted or convicted, there is no “reset button” for prosecutors to try it again.

But over the years, there have been widely-covered instances in which both federal and state prosecutors take a whack at the same mole. Casual observers of these moments have learned that there are times when two prosecuting authorities can try to address the same criminal conduct, particularly if there is a serious concern of an unjust result in the state court. So, whether it is a federal civil rights case against the officers who beat Rodney King, consecutive prosecutions (state, then federal) in the Oklahoma bombing case in the mid-1990’s, or even contemporaneous prosecutions of Dylan Roof, the perpetrator of the heinous Church murders in Charleston, S.C., we have begun to recognize an exception to the basic principle of Double Jeopardy. That exception, as it turns out, is also well established in the interpretive case law regarding federal Double Jeopardy. It is called the “dual sovereign” exception, and it simply means that different prosecuting entities can, in fact, separately prosecute a person for the same conduct.

Turning back to the Manafort caper in New York, if the analysis were to end on simply the dual sovereign exception, one could easily conclude that Vance’s “New York justice” contention wins. A New York District Attorney is a separate sovereign from federal prosecutors in Washington, D.C. However, things get considerably trickier because New York’s State constitution has a more protective Double Jeopardy provision than that of the federal constitution. There is an additional wrinkle in that some of the New York charges related to counts in which the jury hung in federal court, although, importantly, when Manafort reached a plea agreement he acknowledged the conduct of the hung counts and the judge dismissed those counts with prejudice, which typically precludes any form of reactivating those charges. The New York trial and appellate courts showed no sign of serious struggle in dismissing the Vance indictment on state Double Jeopardy grounds. The procedural maze in which Paul Manafort found himself for several years is officially done.

There are a couple of practical lessons or observations to be made that may survive the actions in the New York courthouses. First, lawyers representing clients facing dual or successive prosecutions need to go beyond the obvious research into Fifth Amendment Double Jeopardy and explore the state constitution or statutes that touch on the same concept. In hindsight, the successful claim looks somewhat obvious, but plenty of attorneys would have neglected the exploration into state constitutional differences. Second, Cy Vance took a very questionable approach when it comes to Mr. Manafort. It never sat well, regardless of politics or the character of a political consultant sporting ostrich-feather coats, to hear a prosecutor using a press conference to announce charges primarily designed to thwart Trump’s pardon power. The focus of prosecutors should always be on the evidence and the individual charged, not the desire to show disdain for a political figure. More directly, it seems thoroughly implausible that at least the career prosecutors in that New York office did not know that the indictment was indefensible against a New York double jeopardy challenge. Did Vance know this but not care, or did he try to simply bury his head in the sand like, well, an ostrich, hoping to make a splashy media point and not worrying about the eventual outcome? Neither is a respectable position.