1/ Time for a thread: About NY AG Schneiderman's proposal to amend NY's double jeopardy law… to make it easier for NY to prosecute sm1 who's been pardoned by Trump.
In particular: Would it raise an Ex Post Facto Clause problem – eg if NY at some point prosecutes Michael Cohen?
2/ Tbc, this is NOT about double jeopardy & the dual sovereignty doctrine; clearly, the US Constitution doesn't deny states the right to prosecute sm1 simply because the federal government has already prosecuted that person on the same facts.
3/ Rather, this is about NY's double jeopardy *statute* and whether there will be ex-post-facto problems if NY amends the statute to enable certain prosecutions that presently are banned... and then prosecutes someone for acts committed before the ban was lifted.
4/ @JedShug, who's called for a change to NY's DJ statute, CPL 40.20 codes.findlaw.com/ny/criminal-pr…, says there is an ex-post-facto problem slate.com/news-and-polit… but only if NY changes its law *after* 1) sm1 has pleaded guilty to federal charges, or 2) sm1's federal trial has started.
5/ I don't know the basis for that take by @JedShug. In any event, as I read MATTER OF KAPLAN v. RITTER (1987) leagle.com/decision/19872… the key date in an ex-post-facto analyses in this context is the date the feds "commenced" prosecution.
6/ And as I read NY law, "prosecution commences" when charges are brought. So if NY wants to beat the ex-post-facto clock per its Court of Appeals*, it seems there's even less time to act.
(* – as to whether SCOTUS would agree w/ NY on this, that's a separate question ⬇️)
7/ As for whether a change to NY's double jeopardy law can be applied retroactively w/o running afoul of the US Constitutions Ex Post Facto Clause... @JedShug says yes, and he cites Stogner v. California, 539 U.S. 607 (2003) supreme.justia.com/cases/federal/…
8/ At the moment, I can't say I think he's wrong; he may well be right. But, I'm not ready to agree with him… b/c I'm stuck on Collins v. Youngblood, 497 U.S. 37 (1990) supreme.justia.com/cases/federal/… Tbf, this is not my wheelhouse. Just fwiw I'm saying I don't think the answer's clear.
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