Seasoned local police had signed off on the case. As the Cato Institute’s Walter Olsen shows, under our Constitution the case should, from the start, have been a state issue only. The gross incompetence of prosecutor Angela Corey was the cherry on the cake.
Under our Constitution, even serious crimes such as murder are traditionally offenses under state law only.
In a controversial 1959 opinion, Bartkus v. Illinois, the Supreme Court ruled that consecutive prosecutions under state and federal law do not violate the Constitution’s ban on double jeopardy. Interestingly, that was the view of the court’s five more conservative justices. The dissenters, who warned eloquently of the dangers of letting government try people twice for the same conduct, were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan.
For many years thereafter, such prosecutions were a rare exception. Occasionally they were of national note, as when a Jim Crow authority would refuse to prosecute a white-on-black crime. Only with the Rodney King case in California in 1993 did anyone seriously propose giving prosecutors a second bite at the apple after a state prosecution pursued in good faith before an ordinary jury ended in an unpopular acquittal. If the floodgates now open, how long before we see federal enforcers begin to second-guess state-court acquittals in, say, drug cases?
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