Vail Law: Forget Alex Trebek – this is double jeopardy |

Vail Law: Forget Alex Trebek – this is double jeopardy

Rohn RobbinsVail, CO, Colorado

I was standing in a lift line over the weekend – Chair 2 getting like Chair 2 sometimes does – talking to a friend about some legal stuff.”Are you lawyer?” some guys in line behind me asked.”Yep.””Are you familiar with double jeopardy?””The legal concept? Sure.””The movie.””No…””Same thing,” one of them offered.They went on to explain. “Double Jeopardy”- the movie – stars Ashley Judd and Tommy Lee Jones.”It’s based on a true story,” one of the guys said. “Takes place in the state of Washington. This woman is charged with killing her husband who goes missing when they’re out on a boat. She’s tried and convicted and serves time for the crime.””Sounds good,” I said as we slid forward in the line. The chairs were moving slowly.”But here’s the thing. She didn’t do it, see? And she believes her husband’s still alive. When she gets out on parole, she starts looking for him and she finally finds him. He’s alive and living under an assumed name. A chick she’d been serving time with says the wife should kill the scoundrel. And she could get away with it because of double jeopardy.””The movie was in 1999,” the other guy added as an aside. “We’ve been arguing about this for 12 years.””Anyway, at the end of the movie, she does kill him in a fight. But she can do it, right? And nothing would happen to her,” the first guy said. “Because of double jeopardy. She was already convicted for killing him once and served time for it.””Well, no,” I said, “not exactly.””See?” The second guy shot his gloved fist towards the movie heavens triumphantly.”Why not?””It’s a different crime,” I said.”But it’s not! She can’t kill him twice!” He smiled uneasily, paused a minute, leaned heavily on his poles. “How come?””Well, she didn’t kill him twice. And you’ve got to understand the concept of double jeopardy…”Double jeopardy is a Constitutional right. Under the 5th Amendment,” I said. “The relevant clause reads that ‘no person shall be subject for the same offense to be twice put in jeopardy of life or limb.’ It is a procedural defense,” I explained. “What it provides is that a defendant charged with a crime can’t be tried again on the same or similar charges following a legitimate acquittal or conviction. Its intent is to limit abuse or harassment by the government in repeatedly prosecuting someone for the same offense.”The gentleman looked skeptically at me. “So?””Well, in your story – among other things – the conviction wasn’t ‘legitimate.’ She was wrongly convicted. Second, it wasn’t the same offense. It was a different crime – different date, different set of facts.”The first guy screwed his face up.”There are three essential protections included within the principle of double jeopardy,” I said. People were looking at us sideways in the line but I went on. “First, you’d have to be tried for the same crime after an acquittal. Or, second, you’d have to be retried after a conviction, unless the conviction has been reversed, vacated or otherwise nullified. Third, double jeopardy would apply where someone was being punished multiple times for the same offense.” I looked at Dave, my skiing buddy, then back at the first guy. “The first conviction was technically a nullity,” I said, “since she didn’t do it and her husband was still alive. Second, different facts, different crime.” I pushed forward a little again. “Double jeopardy only prevents someone from being tried twice under the same set of facts. In the movie…””It was based on a true story!” the first guy cut in.”Either way,” I said. “The first, fake, killing and the second real one would constitute two different crimes.” I scratched the tip of my ski pole in the packed snow. “Double jeopardy wouldn’t apply.””Well if it’s a Constitutional right, then what about if it took place under state law?” The guy was grasping at straws now. “What if it was the state that was after her?”This was a lot for a ski day. “Same deal,” I said. “Although the Fifth Amendment initially applied only to the federal government, in Benton versus Maryland – a 1969 case – the Supreme Court ruled that the double jeopardy clause applied to the states by incorporation of the 14th Amendment.”The chair rounded into view. We moved forward, sat, started up the hill.”Well, I still think I’m right,” the first guy said.”Are not,” the second said. “See?””Have a good one,” I called behind me. Minds set, I had settled eactly nothing. But the first guy was wrong. Dead wrong, in fact.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business & commercial transactions, real estate & development, homeowner’s associations, family law & divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) & KBTB (104.7 FM) and seen on ECO TV18 as host of “Community Focus.” He may be reached at 970-926-4461 or at

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