The Double Jeopardy Clause does not prevent charging Darren Wilson with murder

Thursday, December 18, 2014

Good morning:

The Double Jeopardy Clause does not prevent charging Darren Wilson with murder.

The Double Jeopardy Clause is in the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The basic purpose of the clause is to prevent a prosecutor from retrying a person who has been found not guilty. To understand double jeopardy, one has to know when jeopardy begins and when it ends. Note that the clause does not prohibit jeopardy; it prohibits double jeopardy.

When does jeopardy begin?

As a matter of law, jeopardy (i.e., the possibility of conviction) does not attach (i.e., begin or start) until the jury has been selected and sworn in a jury trial. It attaches in a bench trial when the first witness has been sworn. Note that jeopardy does not attach when a person is charged with a crime.

When does jeopardy end?

Jeopardy ends when a person has been found guilty or not guilty of a crime.

What happens when someone appeals a conviction and sentence?

If the conviction is reversed by an appellate court, the conviction is vacated or set aside and the case is remanded (i.e., sent back) to the trial court for further proceedings. This means the defendant returns to being in jeopardy again. However, it isn’t double jeopardy because the first state of being in jeopardy has not concluded yet. The prosecution has the option of dismissing the case, retrying the case, or resolving the case with a plea bargain.

Note that there is no limit to the number of times a person can be retried for the same offense, so long as an appeal from the result in each trial results in the conviction being set aside and the case remanded for a new trial.

What about a second prosecution by the federal government after an acquittal in state court?

The Double Jeopardy Clause does not prevent a subsequent prosecution for the same offense by a different sovereign. A good example is drug offenses, although for reasons of comity and proper allocation of resources, federal and state prosecutors have established guidelines generally based on drug quantities to avoid double prosecutions. The feds prosecute the cases that involve larger quantities of drugs with the states handling the lesser quantities.

Can Wilson be prosecuted for killing Michael Brown?

Yes, because jeopardy has not even attached yet.

Nothing except racism and an obvious conflict of interest prohibits McCulloch from charging Wilson with a prosecutor’s information or summoning a new grand jury to indict him.

With or without Witness 40, there never has been a legitimate or credible argument against probable cause to believe Wilson murdered Brown.

With the total collapse of her credibility, however, and the strong probability that the prosecution knew before they put her on the stand that she had not witnessed the shooting, I firmly believe the investigation of the Michael Brown shooting must now expand to include an investigation to determine if McCulloch, his prosecution team and the police officers who testified before the grand jury conspired to obstruct justice by concealing the commission of a murder.

Consider, for example, that Kathy Alizadeh, an assistant prosecutor informed the jury before Wilson testified that he could lawfully shoot and kill a fleeing felon. She also handed out a copy of a Missouri statute that contained that language. However, she did not tell them that the statute was declared unconstitutional in 1985 and replaced with language that limits a police officer’s use of deadly force to stop a suspect fleeing from the commission of a violent felony who reasonably constitutes a danger to others. Although she later provided the grand jury with a corrected version of the statute she did not expressly point out the difference between the two.

The difference was significant because the police dispatcher broadcast a theft of some cigars, which is a misdemeanor shoplift and not a violent felony. In addition, Wilson told his supervisor at the scene of the shooting that he had not heard the dispatcher’s broadcast. Finally, Wilson could not have reasonably believed Brown was a danger to him or to others since he was unarmed and had stopped, turned around and raised his hands in the universal symbol of surrender. There simply is no excuse for a professional prosecutor to give an invalid instruction.

I believe McCulloch, his prosecution team and the police conspired to protect Wilson by obstructing justice and suborning perjury with Witness 40.

I would love to prosecute them for what they did and Darren Wilson for the murder of Michael Brown.

34 Responses to The Double Jeopardy Clause does not prevent charging Darren Wilson with murder

  1. a2nite says:

    FYI: CNN came up with #askacop: it got hijacked

    If you do twitter, you may want to ask your own question.

  2. Malisha says:

    OK, the fact that the prosecutor presented someone as a “witness” to the grand jury when he was, at the time, aware that she was not at the scene of the alleged crime, is itself obstruction of justice. It does not matter at ALL whether she changed one part of her story, ten parts of her story, or ALL of her story; the mere fact that she was NOT there at the time means that she was NOT a witness. Since she was not a witness and he presented her to the grand jury as a witness is ipso facto proof that he, the prosecutor, committed a felonious act and I even think he committed contempt of the grand jury. In other words, he used a governmental body that was PAID by the government to do non-government work (hearing from a non-witness in a grand jury proceeding, whether or not her testimony was believed by the jurors) and should not only be fired and disbarred, but should be prosecuted to the fullest. NOT until the cover-up artists are imprisoned will this sh*t stop.

    He is also guilty of misprision. So are Alizadeh and the other assistant prosecutor. “We’re not trying to take you to a law school class here.” No, they were trying to take the grand jurors to a theater production, not a law school class.

    McElroy should get treatment at state expense for the duration of her prison term. Her perjury was worse than Shellie’s.

  3. sparger says:

    I have come to the conclusion that the DA and his police minions are all stupid. We didn’t know it because we weren’t paying attention to them before they shined the spotlight on themselves. That idiot DA could have gotten a non indictment without using lying witnesses. Darren Wilson may not go to jail, but hopefully all the idiots that colluded to keep him out of jail will suffer consequences for their stupidity. McCullough is literally begging for an investigation into his behavior.

    I was thinking today that the Sony Hackers should hack the computers from the DAs office and the Ferguson PD. I am sure its not very secure based on the people in charge there. There’s probably a video confession from Darren wilson and footage of the actual shooting on someones hard drive.

    • Eric says:

      It’s not stupidity. It’s intentional and arrogance that is at play. They’ve been able to get away with this behavior for decades because they know that they’ve only had the St Louis Post Dispatch watching them. By now, we all know that the Post Dispatch is a stenographer for St Louis County law enforcement.

      This is the first time that they’ve behaved this way with the WORLD watching. Neither Jay Nixon nor Bob McCulloch are used to having the world watching. It’s kinda like 1950s Mississippi where they wanted to make sure the northern press stayed away, as they did not want the world to see what was going on down there.

    • I was thinking today that the Sony Hackers should hack the computers from the DAs office and the Ferguson PD. I am sure its not very secure based on the people in charge there. There’s probably a video confession from Darren wilson and footage of the actual shooting on someones hard drive.


  4. Kelly Payne says:

    i think he should be disbarred and arrested for obstruction of justice.

    • racerrodig says:

      Absolutely…..he should be charged, and I’m thinking about 25,000 volts will do. As far as Wilson……they should hold hands during the entire “incident”

      These people are beyond outrageous.

  5. Eric says:

    McCulloch did a local radio interview today:

    1) He freely admits McElroy was never there, he knew she wasn’t there, and that he presented her to the GJ twice. Professor, isn’t this an admission that he suborned perjury?

    2) He admits that he decided to present the case in manner that would not result in an indictment (He said that if he had only presented Dorian Johnson as a witness it would have come back an indictment for 1st degree murder).

    3) He says that the GJ didn’t give her credibility even though the transcript reveals that some of the jurors did believe her.

    4) He bragged about how the fact that at around the same time another white officer in Pine Lawn, MO (in St Louis County), who killed a black victim and was not charged by his GJ, revealed that McCulloch could still be “fair and impartial.” This is despite the fact that, to date, McCulloch has never filed charges against an officer in a fatal shooting.

  6. Eric says:

    Did McCulloch get caught in a bald face lie at his press conference? At approximately the 30:30 mark on the video (below), he begins a winding answer about testimony from, ostensibly, an African American male witness that says Brown came “full charge” at Wilson. Then, he concludes the answer by saying that ALL witnesses alleging this particular detail were black. Because of McElroy, we now know that that is not true.

    • I don’t think any of the black witnesses testified that Brown came “full charge” at Wilson. !6 said he raised his hands.

      • Eric says:

        If that’s the case, then McCulloch’s lie is even more obscene.

        • bettykath says:

          Considering all that went before the press conference, why is a lie or two or a dozen not expected?

          • Eric says:

            I agree with you. But, during the press conference he seemed very deliberately and intentionally to speak in generalities and platitudes: “One witness said this; while another said that….Oh, and all the angst people have felt the past several weeks is the media’s fault, not mine.” With all that time to prepare for a pre-ordained press conference I would have thought he would be more careful to avoid direct and unambiguous square lies of this sort.

      • MDX says:

        It is Zimmerlogic.

        A slow stumble forward is embellished to be a “full charge” just as minor abrasions became a head being repeatedly slammed on deadly concrete.

        What is so very sad is that the stories told by the murderers contradict themselves.

        Wilson states that Brown was a Hulk Hogan compared to his wee five year old self and that the “Hulkster” got at least two full power hits to the left side of his face, yet we see no damage on the left and little on the right.

        • Malisha says:

          Even the white supremacists do not BELIEVE the lies; they say them because they help reinforce the beliefs they hold (we are entitled to kill African Americans because we are superior and they are subhuman) and they really do believe that OUR take on the world (that all humans are entitled to a full life interest including respect and equal justice under law) is wrong, bad, and motivated by our very wicked wish to be “given” concessions so that we can be pretend-equal to THEM. It is a hatred-based “belief” and it does not require internal consistency, objective morality, or any honesty whatsoever. Since they believe the end (maintaining RULE over and CONTROL of the inferiors) justifies the means (murder, perjury, corruption, torture, theft, tax evasion, coercion, rape, terrorism), they do not hesitate to lie to the public. They have no respect for the public. To them, the public consists of two groups: (a) those who support our goals and will be with us; and (b) those who are trying to get away with disobeying us.

          Look at the two pictures, McCullogh and McElroy (ugh! What a shame for their clans!): they look just alike, but for the hairdo and glasses!

        • PhillyBoyRoy says:

          Furthermore, according to Wilson, the two blows, through the open window – try getting good enough leverage to punch solidly through a car window btw – were so forceful that he feared a THIRD (just three blows!) would lead to death.

          So that’s why he had to shoot.

          He was afraid that three blows to his cheek from through a car window would result in death.

      • Bill Taylor says:

        ty, clearly witness 10 is NOT black…..he mentions several times the reason why he was so alert that day and watching his truck, because he paraphrasing a quote “knew his surroundings”or he was aware where he was that day, he mentioned that several times is what i read of his testimony, there is no way he is a black person……

  7. Two sides to a story says:

    “Clearly, they were ‘creating’ rather than ‘finding’ the truth.

    Worth saying twice, MDX. Prosecute the lot of ’em!

    • Disappointed says:

      Why did they mirandize witness’s? Is that normal? I wish they witness would have asked for an attorney. This makes me sick. Fingers crossed someone with authority is paying attention and these idiots who covered up the murder get sent to prison or lose their license to be assholes. Smh

      • Malisha says:

        They gave him Miranda warnings to make him FEEL like a defendant. The whole interview was a form of bullying and intimidation to make him decide not to keep trying to tell the truth. He got bullied because he felt conflicted, to start with, about speaking with them, and then he let himself get bampoozled and that made him feel even worse. He kept saying, “I’m confused.” All the cops were doing was belittling him and berating him so they could, if necessary, make him look like a poor witness when and if he ever got sworn in.

        • Disappointed says:

          Good points and I guess if the prosecutor asked about the Miranda warning being read to him, the GJ may think he had committed some crime? They don’t normally read the warning for a witness to a crime, right? I have been a witness before and don’t remember that being done. This just seems wrong to me. I can’t even think straight because I’m trying to remember if cops mirandized me as a witness and thinking if this is the kind of shit that goes on no one will be a witness to anything in the future.

          • Regular fact witnesses who are not suspected of being involved in the crime being investigated are not mirandized. They aren’t mirandized because there is no reason to believe that anything they say could incriminate them.

        • MDX says:


          They were sending him the message that “if you keep trying to tell truth, then we will make life very hard for you”.

          The goal is to have him keep silent to avoid the hassle.

          And he is in danger. They could easily plant drugs in his work truck and claim he uses his job to sell drugs to that neighborhood.

          And he should be confused. Thirty minutes of questions about a whole lot of nothing and not one second devoted to a sight that must have traumatized him.

          And what an irony.

          Micheal Brown tells this guy he will be back to talk about this guys anger issues and ends up the victim of Wilson’s unchecked rage.

      • They always mirandize witnesses who are targets or subjects of the grand jury investigation. In other words, witnesses who may have some potential criminal liability.

  8. MDX says:

    Look at how the construction worker was treated:

    The article includes a pdf to his “interrogation”. And this man is on a video with an excited utterance that makes his testimony believable, but no, they were more interested in “drug dealing”.

    Contrast the above travesty with how 40 was handled.

    Clearly, they were “creating” rather than “finding” the truth.

    • It’s prosecutorial misconduct for a prosecutor to intimidate a defense witness by threatening to charge them with a crime, if they testify for the defendant. Typically, they threaten to charge the witness with perjury and acting as an accomplice after the fact.

      The defendant meanwhile has a right to put on a defense and can move to dismiss the case for prosecutorial misconduct, if his witnesses don’t appear for trial.

      This situation is the reverse of that typical situation because the prosecutor is attempting to intimidate a witness to a crime committed by the cop.

      Just another example of how improper they acted.

      It’s really outrageous.

  9. Malisha says:

    The grand jury proceeding was nothing but theater for the “masses” to calm them down so they stopped fussing about a man being slaughtered in the street and left to bleed out on the sidewalk for four-plus hours. It had no legal preclusive effect or any other real effect except to be a “talisman” so the corrupt cover-up team could say, “the grand jury cleared him.” They all know that it was just part of their lie.

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