Thread by @steve_vladeck

When the government tries a defendant twice for the same offenses, can anything cure the double jeopardy violation _other_ than dismissing the second prosecution? That's the issue presented in our new petition to the Court of Appeals for the Armed Forces:

justsecurity.org/wp-content/upl…

In a nutshell, after our client was tried and convicted in federal district court, he pleaded guilty in, and was sentenced by, a court-martial for overlapping offenses (after rejection of his double-jeopardy-based motion to dismiss), and _then_ was sentenced in district court.

At that point, and without objection from the AUSA, the district court refused to sentence our client on the overlapping conviction (dismissing that count instead), since that would have been a _second_ double jeopardy violation (multiple punishments for the same offense).

But the Army Court of Criminal Appeals held that, as a result of the district court's dismissal of the overlapping conviction, our client had already received a remedy for the _first_ double jeopardy violation (his court-martial for the same offense):

jagcnet.army.mil/Apps/ACCAOpini…

As the concurring opinion summarized, “as long as the results of one trial go away, the Constitution is not
offended."

By that logic, the Double Jeopardy Clause doesn't prohibit a successive trial for the same crime; it just limits the government to whichever result it prefers.

In our view, that's an unprecedented (and scary) narrowing of the protection against double jeopardy, and one we hope the Court of Appeals for the Armed Forces will exercise its discretion to correct.

Stay tuned...

/end