I hear you on that Brian. Although my particular ax to grind is over the civil trial that sometimes happens after a criminal one. Basically, it sounds to me like: “We can't put you in jail but we can take away everything you have ever worked for and earned”. To my way of thinking, that is far more of the proverbial second bite at the apple than redoing a failed criminal trial is.

You see, while in jail or not in jail is a binary matter, there can be finer shades of meaning in the law than just that.

As an example, if through prosecutor incompetence, the govt. fails to make a case that the jury can find fact on, then they may vote to let the person go, even in a case where “everybody know he did it”.

Also, a jury has the power to refuse to convict despite the evidence at hand. This is fairly rare and kept even rarer by the fact that judges love to instruct juries that they are supposed to rule on the facts that have been presented. It does happen occasionally though.

Then too, don't confuse a hung jury with a mistrial. They really are different things.

A hung jury is where the vote is taken but it never comes out to a clear verdict. A mistrial is where the judge cancels the trial before it comes down to a verdict.

So technically, a hung jury is a form of mistrial. However, there are any number of reasons to declare a mistrial. For example, if the most damaging evidence against a defendant was obtained illegally and presented anyway, then the judge may have to rule a mistrial. In that case (at least in the US), the prosecution does not get to redo the trial because of the evidence fuck up and protection against double jeopardy.

A hung jury usually does provide a redo on the original trial under the assumption that the problem was with the jurors and not the litigants.

A retrial is no different than hitting reset on a video game. Why should the government be able to hit reset? Because it doesn't like the outcome? I think that is dangerous to freedom. If the court proves it's case the first time then the verdict is guilty, no need for a second trial.

And you already pointed out cases where a re-trial is ok to me and that is when upon defense  appeal to a court sees that somewhere in the process the defendant's rights and or the process was not properly followed. Any retrial should default to giving the defendant a do over, not the prosecution.

I think "hung jury" should be treated the same as "not guilty". Neither in a literal sense mean the person is innocent, it merely says the court did not prove it's case. If the state cant prove it's case then it shouldn't get a second shot at it.

And second chance should be afforded to the convicted to insure if a mistake was made in the guilty conviction, that it can be reversed.

For double jeopardy to go into force, an acquittal must be made.

IMO, a judicial system that aims for anything less than "locking up ALL guilty parties" (not scapegoating or falsely identifying the wrong party, as in Brian's case) is a system that promotes vigilantism to the degree in which said judicial system has failed to bring criminal parties to justice. It's a controversial take, yes, but I also believe it to be an inevitable consequence of faltering justice.

Tell me this much - have you ever heard of the term "jury nullification"? What does that mean to you?

Black n' white illustrations of common law look great 'on paper' but they don't hold up so well in practice. To me, your equating "not guilty" with a hung jury misses one giant pink elephant in the room; the need to isolate criminals from the general populace and protect civilians from them. This is particularly true in the case of violent felonies, sexual abuse crimes, destruction of property and theft, but also in the broader picture of society.

Brian37, you do NOT want to see a criminal justice system that has been effectively castrated, not because of the creeps and ne'er-do-wells going free, but because of how it would entitle the common masses to pursue a Dexter Morgan-like quest of "private justice".

Actually, that is more wrong than it is right. An acquittal is a very public matter. If someone was acquitted and then retried UNDER THE EXACT SAME LAW, that would be double jeopardy.

For example, if a robbery went bad and someone was shot dead, the defendant could be charged separately for robbery, manslaughter and unlawful weapons possession. Those three charges can be heard all at once by the same court or in series under different judges and still not be double jeopardy.

However, if the defendant is exonerated for one of those charges, the prosecutor can proceed with the other charges fair and square. What cannot happen is that the previous charge be retried.

What does happen from time to time is that a person will be exonerated on a charge and then the state will pass a new law that he can be convicted of. Since it is a different law (even if the specifics are identical), that would not be double jeopardy.

It would however still be a violation of at least one and possibly two other stipulations of the constitution.

And ex post facto trial is one where you are charged with breaking a law that was not on the books at the time of the actual crime. Let's say for example that you dump some chemical down a sewer but it is not listed as a bad chemical at the time you do it. Two years later that chemical gets listed as bad.

In that case, they cannot go back and arrest you for doing something that was not a crime when you did it.

A bill of attainder is a law that was written specifically so that the state could “get you”. In this case, let's say that you actually did some real crime but the state does not have enough evidence to convict you. Then eight years later, they find the evidence. Well, too bad for them, the statute of limitations has expired. So they pass a new law that extends the statue of limitations.

Well, in this case, what you did was illegal when you did it, so ex post facto does not kick in here. However, they did pass the revised law specifically for you. No, they cannot do that. They have to pass a law for everybody. And because they passed the law the way that they did, they still have to give you a pass on the matter.

If by “added clarifications” you mean telling you that you were like 99.999% wrong, then yes, I added corrections.

However, if you meant that I specified why you were wrong and went into enough detail to show that you are posting from ignorance, then, um, well, You have no clue what you are talking about. You may stop for now.

Also, please refrain from voting.

did you commit the same offenses again?

Did you know that if you were tried and convicted at the local city level for say drunk driving and you agreed to say go for a year probation with drug testing and a rigorous regimen of AA classes.  The State can pick up your case and add more say take your license away and other things months after you have already agreed to your conviction at the local city level.  How is it that the State can just come in and say you were already convicted and add their own punishments just because they can.  The only reason I know this can be done is my friend just had it done to him.  He had already gone through court, lawyers agreed to his punishment the judge sentenced him and he was serving out his probation when the state came in and decided almost a year later to take his drivers license which of course he has to have to get to his AA classes and drug screens.  Now the state never even allowed him a day in court just did it.  Is this a type of double jeapordy or just a plain screwing because he doesn't have the money for a decent lawyer.  would like your opinion on this. 

ReverendWillieg,

Can you provide a location of the court and a case number so that I can review the files over the internet? That would really help to understand the specifics of the case.

That being said, even if you live in a huge city like New York of Chicago, you don't have “city courts”. The fact is that licenses to practice law are handed out on the state level. Since all judges are lawyers, your local judge is actually a state judge and the case was handled in your local branch of state court.

Really, you are aware that driving drunk is a violation of state law and not some local ordinance that can vary from town to town, right?

In any case, I can pretty much guarantee that your friend accepted a Nolle prosequi. Basically, the prosecutor offered him a deal to get out from under his stupid mistake.

The deal is that the prosecutor is willing to take an agreement that if your friend will abide by certain conditions (such as attending alcohol education, getting right with a substance abuse therapist and whatever else), the prosecutor will be willing to defer the actual trial until your friend can show the court that he is seriously sorry about what he did and will not be doing it again. If your friend actually did whatever the deal was for, then the prosecutor will drop the charges.

However, if your friend messes up again, then the deal is off and the prosecutor can resume the case. Generally, this is done with a delay factor of one year. If your friend was, say, 90% good with the law, the prosecutor might not be pleased but that would probably be close enough for him to hold to his end of the deal and drop the original charge.

Your friend may well have misled you when the law came down on him but what probably happened was that he did not follow through on the deal that he made with the prosecutor. The judge had nothing to do with this. In fact, he was never on probation in the first place.

To the extent that he violated the terms of his Nolle prosequi, he was still legally exposed to what was done to him because the judge never actually made an official ruling. When the time came for the judge to review the case and the prosecutor told the judge that your friend was not showing that he was working to get right with the law. At that point, well all bets are off and there is no issue of double jeopardy here.