State v. Parsons and State v. Parsons

Re: Double Jeopardy/Double Jeopardy (1999)

Can someone be charged for the same crime twice?  Can they be charged with the same crime in multiple places?  Is murder not always a crime?

Sources: 

U.S. Constitution, Amend. 5, 10, 14.

Benton v. Maryland, 395 U.S. 784 (1969).

Blockburger v. U.S., 284 U.S. 299 (1932).

Brown v. Ohio, 432 U.S. 161 (1977).

Gamble v. U.S., 139 S. Ct. 1960 (2019).

Heath v. Alabama, 474 U.S. 82 (1985).

In re Nielsen, 131 U.S. 176 (1889).

McCulloch v. Maryland, 17 U.S. 316 (1819).

Serfass v. U.S., 420 U.S. 377 (1975).

U.S. v. Dixon, 509 U.S. 688 (1993).

U.S. v. Felix, 503 U.S. 378 (1992).

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

            Murder isn’t always a crime…Is the tagline for the movie Double Jeopardy.  This, admittedly, is catchy, but completely untrue.  By definition murder is a crime; the unlawful killing of another human being with malice aforethought (emphasis on the unlawful part).  The act of killing someone without determining any culpability or liability is a homicide.  Death by homicide is often one of the explanations given by a coroner on the death certificate, as a way to explain the death as being caused by someone else.  There are many ways that someone might die by homicide, but not be murdered.  For example: justifiable homicide where the person who does the killing is justified by law to do so, usually for self-defense or defense of others.  So, homicide isn’t always a crime, but murder is always a crime. However, the movie itself is not even saying that murder is not a crime, just that the State can’t put you on trial for murdering your husband twice.  The movie frames this notion as being the protection against Double Jeopardy.

            Double Jeopardy is a fundamental concept in the American justice system, but it is also fairly complicated in practice.  Double Jeopardy comes from the Common Law doctrines of autrefois acquit and autrefois convict; which translate to previously acquitted and previously convicted.  The Common law protections against being tried again for an offense the defendant was previously acquitted or convicted of are enshrined in the U.S. Constitution in the 5th Amendment of the Bill of Rights.  The relevant part of the 5th amendment states: [quote] “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…” [end quote]  The 5th Amendment protection was extended to the states through the Due Process Clause of the 14th Amendment, although some states have their own State Constitutional protection against Double Jeopardy.  Double jeopardy functions as a procedural safeguard preventing the government from trying someone for the same offense twice.  So, on the surface, it would seem like Ashley Judd’s ex-lawyer/inmate friend is correct when she tells Judd’s character, Libby, that when she gets out of prison she can go and kill her husband and there is nothing anyone can do because she was already convicted for his murder.  Unfortunately, that is a complete misinterpretation of what Double Jeopardy means.  Thankfully, it does not seem like anyone has tried to take that inmate’s advice in real life because I couldn’t find anything on the internet where someone tried to use Double Jeopardy, the movie, as a defense.  Which, considering the circumstances in the movie, is not that surprising because it is a pretty unlikely scenario.

            In the movie, Libby’s husband frames her for his murder.  He takes her out on a borrowed sailboat and in the middle of the night stages a murder scene where Libby apparently uses a kitchen knife to stab him and he radios for help, then falls overboard into the ocean.  There is a lot wrong here, but because there is no body and the coast guard finds Libby on deck, covered in blood, and holding a knife; they do the law enforcement thing where they don’t investigate and just assume she must have done it.  There are a lot of things that don’t really add up and I imagine HBO or Netflix would have made an excellent True Crime documentary about the case and some intrepid podcaster, internet sleuth, or true crime author would have tracked down “Jonathan Devereaux” because he wasn’t doing a great job of hiding out in New Orleans.  But we are not litigating a fictional investigation here, and honestly, people have been convicted of murder on far less evidence.  

            So, Libby is convicted for the murder of her husband, whose body is never found because, the ocean, and she serves 6 years in the least secure high security prison I’ve ever seen.  At least two of the women Libby bunks near are also convicted murderers, so serious felonies, and yet there does not seem to be cells, just 20 or more bunk beds lined up in one large room like a massive military bootcamp scene.  I know there are prisons laid out similar to this, but they are usually jails (for pre-trial offenders) or low-security prisons with low-level offenders.  The idea that some of these women are serving life sentences for murder and are just sleeping in the open with several dozen other prisoners is actually a nightmare.  Anyway, sorry needed to get that insanity off my chest.

            After 6 years of her murder sentence, Libby is paroled (yep, 6 years…).  She is sent to halfway house that is supervised by the former lawyer, now parole officer, Tommy Lee Jones.  There are a lot of ex-attorneys in this movie, and yet none of them seem to understand what double jeopardy is, which is probably why they are ex-lawyers…  All Libby has to do now is keep out of trouble for 3 years, but she doesn’t do that because she has a husband and son to track down.  And after only a couple of stops along the way, Libby tracks down her husband in New Orleans where he is going by the name, Jonathan Devereaux, and is the owner of a fancy hotel and the apparent center of the high society New Orleans social scene.  Libby confronts him in order to find her son, he tries to kill her.  Tommy Lee Jones realizes Libby is not lying about being innocent and the two of them confront the husband for the final time, which results in the husband being killed, for real this time.  So, because Libby is the one to kill him but she has already been convicted of his murder, can she be convicted of murdering him a second time?

            The short answer is yes, she could absolutely be charged with murder a second time.  The long answer involves digging into some Supreme Court cases.  We have the language of the 5th amendment: [quote] “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”[end quote] but we also need the long history of Supreme Court precedent to fully understand how and when double jeopardy comes into play.  The plain language of the amendment is clear that you cannot be tried for the same crime twice by the same authority.  If you are found not guilty of committing murder in the State of Washington, Washington cannot try you for the same murder again.  That would very clearly put you in double jeopardy and would violate your constitutional rights.  So say instead that you are charged and acquitted of murder in Washington, but then the State of Washington instead puts you on trial for manslaughter?  Or say the killing occurred during a bank heist and it involved a gun, and they try you for felony murder and then for robbery?  Those are separate crimes right?  In order to determine whether the defendant is being punished twice for the same offense, the Court uses the Blockburger Test, from the 1932 case, Blockburger v. U.S.: [quote] "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." [end quote]  To illustrate this we can look at the facts of the Blockburger case; where the defendant was charged with multiple counts under the Narcotics Act but argued that the multiple charges were all the same offense so he should only be charged with one crime.  Blockburger tried to argue that because he was selling drugs to the same people, or on the same day, or in the same package that the State put him in double jeopardy when they charged him with separate crimes for each transaction.  This is of course ridiculous, but you have to try right.  The Court also thought this was a ludicrous argument, stating: [quote] “The test is whether the individual acts are prohibited, or the course of action which they constitute.” [end quote]  The Narcotic Act prohibits each individual sale, not the entire enterprise of the drug dealing operation.  Selling drugs is inherently transactional so each sale is a separate violation of the statute because separate facts make up each of the counts: transactions that took place on the same day were at separate times, or in separate locations, with different buyers, or involved different amounts or kinds of drugs.  Due to the differing facts, double jeopardy did not apply.

            This is in contrast with several older cases from the 1880s dealing with a Utah territory statute that aimed to punish polygamy.  One of these cases, In re Nielson, involved a defendant criminally charged under two subsequent amendments to a Utah Statute.  The amendment passed in 1882 prohibited the cohabitation of any male with more than one female; it was punishable as a misdemeanor.  The 1887 amendment raised the punishment to a felony and elevated the crime of unlawful cohabitation to adultery.  Nielsen was charged under both versions of the statute.  He pled guilty to unlawful cohabitation, and then was charged with adultery.  The Supreme Court agreed with Nielsen that the second charge put him in double jeopardy because unlawful cohabitation had similar elements to the felony offense of adultery.  Utah tried to argue that they charged Nielsen with adultery for the act of living with the second, unrecognized, wife from 1887 up to his arrest.  The Ct. disagreed with this tactic because the cohabitation was continuous and the behavior remained the same pre- 1887 and post-1887.  Nielsen was already punished for cohabitating with both women for the entire time so by charging him with adultery for the same act he already paid for he was put in jeopardy for the same offense twice.  The entire timeline of the prohibited cohabitation involved the same facts, Nielsen living in the same house with two different women, so there could only be one offense committed.

            Further explanation of the Blockburger Test is illustrated in the 1977 Supreme Court case, Brown v. Ohio; where the defendant is charged by the State of Ohio and convicted of joyriding, then after serving his sentence is charged again with car theft still in Ohio.  This was held to be a violation of the defendant’s 5th amendment rights because joy riding is included in the statutory definition of car theft and double jeopardy still applies even if the defendant is convicted.  As the Court puts it, [quote] "The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal.  It protects against a second prosecution for the same offense after conviction.  And it protects against multiple punishments for the same offense." [end quote] In Ohio, the crime of car theft was defined as joyriding with intent to deprive the owner; because joyriding is an element of the crime of car theft it is considered a lesser included offense.  The Court notes that lesser included offenses have long been considered as part of double jeopardy, stating: since 1889 [quote] "where...a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense." [end quote]  Using the Blockburger Test we can see that a lesser included offense like joyriding is going to contain the same elements and facts as the greater offense, so the lesser and greater offenses cannot be considered two separate offenses.

            The issues brought up in Brown, Nielsen, and Blockburger illustrate why prosecutors often charge defendants with a list of crimes that are essentially the same, but have varying degrees of culpability.  If the State wants to make sure someone is found guilty of killing someone they will charge them with murder and the lesser included offenses, like manslaughter, which gives the jury more discretion in convicting someone, but also avoids the issue of double jeopardy.

            So you might be thinking that in any situation where someone is charged with a crime and is either convicted or acquitted then they can never be charged for that crime ever again, right?  Well, no, that is not true.  This was learned the hard way by the defendant in Heath v. Alabama, from 1985.  Heath hired two men to kill his pregnant wife.  The men kidnapped the wife and murdered her, leaving her body in Georgia.  Heath was later charged with her murder by the State of Georgia and decided to take a deal to avoid the death penalty by pleading guilty.  Then Alabama decided to charge Heath with murder.  How?  Well, the Heath’s lived in Alabama and Heath’s wife was kidnapped from their home in Alabama.  So, the state of Alabama determined that they also had jurisdiction over the murder, and to further complicate things for Heath, Alabama also had the death penalty and they weren’t offering Heath a deal.  The case made it to the Supreme Court with Heath arguing that he had already been convicted of murder in Georgia, so Alabama was putting him in jeopardy by charging him for his wife’s murder a second time.  The Court disagreed.  They cited precedent from as far back as 1852 of the dual sovereignty principle. Stating: [quote] “’[a]n offence, in its legal signification, means the transgression of a law.’ Consequently, when the same act transgresses the laws of two sovereigns, ‘it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.’" [end quote]  So, despite being charged for murder in both States, he is not being held to account for only one offence of murder, instead being charged for murder under Georgia’s state laws and under Alabama’s state laws.  

            The dual sovereignty principle applies anytime there are two, or more, legal entities that draw their legal authority from separate sources of power.  Ever since the foundational Supreme Court decision in McCulloch v. Maryland in 1819, the Court has recognized the separate legal authority of the Federal Government and the individual states, as well as the distinct sovereignty of each of the states in relation to each other.  Each State’s authority to make and enforce its own laws goes back to the sovereignty the original 13 colonies held prior to joining the Union and is preserved in the 10th Amendment.  As such, each State has its own Constitution and the ability to create and enforce its laws.  The Federal government also exercises its own legal authority which comes from the U.S. Constitution.  As the Court puts it in McCulloch v. Maryland, [quote] “In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.” [end quote]  This is probably most obvious when it comes to murder.  All 50 States have their own laws against murder; the Federal Government also has a murder statute.  However, murder is only prosecuted in Federal court by the U.S. Attorneys when there is federal jurisdiction.  There has to be a connection to Federal law in order for the Federal government to step in, usually a murder involving an federal employee, taking place on federal land, or involving an institution that is Federally insured (like a bank), or Federally regulated (like an airport).  This is why O.J. Simpson was never retried in Federal Court, only the State of California had jurisdiction over the case.  So for double jeopardy purposes, any sovereignty with its own legal authority that has jurisdiction over the case can bring that case and it will be considered a separate legal offence for each sovereign.

            In contrast, there are times where dual sovereignty does not apply, such as in Nielsen v. Oregon, (different Nielsen) a 1909 case where the State of Oregon tried to fine a fisherman for fishing without a license in the Columbia River, despite him having a fishing license from the State of Washington.  In that case the Court stated that the dual sovereignty principle could not apply because the Columbia River creates a shared boundary between the two states giving them concurrent jurisdiction.  When there is shared jurisdiction then regulated activities that are licensed by one state cannot then be prosecuted by the other state.  We are not going to explore that question any further in this episode.  I just thought it was an interesting argument brought up in the Heath decision.

            So, unfortunately, or fortunately depending on how you feel about these things, Heath was subject to the jurisdiction of Alabama (as a resident of the State, and as the location of the abduction and the conspiracy) and the jurisdiction of Georgia (as the place where the murder occurred and the body was dumped).  He would probably also have been subject to Federal jurisdiction due to the kidnapping occurring over state lines, but the Federal government seems to have declined to get involved likely because there was adequate action taken to prosecute the crime and Heath was at the very least going to be spending time in jail in Georgia.

            Now that we have a better understanding of Double Jeopardy we can look at how it might apply in Libby’s case.  Obviously, Libby’s situation is highly unusual in that her husband is legally dead, but leaving that wrinkle aside, would Libby be able to claim double jeopardy for the second murder of her husband?  If Libby was already charged, tried, and convicted of murder, served her time and was released, would charging her again put her twice in jeopardy for the same offense?  By definition, murder is a one-time per person offense.  If we are just talking about one jurisdiction, you can technically only kill a specific individual once, and each individual killed is its own separate charge of murder.  All lesser included offenses of murder are also specific to one individual.  Theoretically, it would be impossible to kill someone twice, either the first time is an attempted murder or the second is mutilation of a corpse.  Murder is not an ongoing enterprise; it is assault, battery, or attempted murder right up to the point that the victim is dead.  Due to the one crucial fact that her husband was still alive, Libby was wrongfully convicted of murder.  This is unfortunate, and she might have legal remedies she could pursue, but it is not a free pass to commit the crime you were falsely convicted of.  At the very most she could only have been guilty of attempted murder.  In Washington State, criminal attempt to commit first or second degree murder is a Class A felony, which carries a maximum penalty of life in prison.  So the fact that Libby only served 6 years is pretty good for attempted murder or murder.

            The crimes of conspiracy and attempted murder are often classified as separate offenses for the purposes of Double Jeopardy despite technically being lesser included offenses of the greater crime.  Conspiracy is the agreement to commit a crime with an overt act made in furtherance of committing the crime and criminal attempt is to act with the intent to commit a crime that falls short of the completed crime.  Conspiracy is not usually charged once the crime is committed and attempt generally merges into the greater crime once the crime is complete.  However, the Supreme Court considers conspiracy a separate crime under the Blockburger Test because to commit conspiracy there is an agreement between co-conspirators to commit the crime and this is a fact that is unique to conspiracy and not required for the underlying crime.  For example: Adam, Betty, and Charlie agree to rob a bank.  Adam steals a getaway car, Betty makes the masks, and Charlie gets caught lurking around the bank afterhours.  Each has acted in furtherance of the conspiracy to rob the bank. If Charlie did not get caught and they robbed the bank the conspiracy is complete and each of them is guilty of robbery. The elements of conspiracy to commit a robbery are: an unlawful agreement between 2 or more people to commit the robbery and an overt act in furtherance of the conspiracy.  The elements of the crime of robbery are: a trespassory taking and carrying away of another’s property with the intent to deprive the owner permanently, and the taking is from the person or presence of the owner by violence or intimidation.  The two crimes contain separate elements that would require different facts to prove so they are separate crimes under double jeopardy.  

            Criminal attempt to commit murder is an exception to the rule.  Murder is the unlawful killing of another person with malice aforethought and attempt is the specific intent to commit a crime with a substantial step taken toward committing the crime that ultimately falls short of completion.  So attempted murder is the specific intent to commit murder with a substantial step taken toward committing the murder but the murder is not complete.  Normally, an attempt to commit a crime and the crime itself merge once the crime is complete so they are not considered separate offenses because all the facts to prove attempt are used to prove the greater crime, too.  Murder is unique because in attempting to commit murder you have failed to fulfill the most important element of murder, the unlawful killing of another.  The lesser included offenses of murder, like manslaughter, all require that the victim is dead, what changes is the level of culpability in causing that death.  Once the victim dies, attempt to commit murder merges into the crime of murder.  Murder does not have a statute of limitations and it is pretty specific as to the intent and the action, but the result could take some time.  Other crimes have statutes of limitations, which is the window of time where the State can charge someone with committing the crime.  This makes it highly unlikely that someone could be charged with the attempted crime and then the crime is completed after with enough time to be charged again.  Or that it would even be possible for the crime to be attempted and then completed after some time at all.  But with murder it is possible to attempt to kill someone and they don’t die until years later but it can still be tied to the attempt.  For example, in a situation where a victim is shot, but survives the gunshot wound, the defendant could be found guilty of attempted murder.  Then while serving their sentence, the victim dies and it is determined that it was a direct result of the gunshot, just delayed over several years.  This is called the delayed death exception.  Prosecutors could decide to charge the defendant with murder based on the fact that the victim is now dead.  These are two offenses that stem from the same criminal behavior and not subject to double jeopardy.  This is all theoretical though, because I could not find any Supreme Court cases where someone was charged with attempted murder, served their time and then the person died from their injuries and the person was tried again for murder.  There have been cases where the prosecutors thought about bringing murder charges but couldn’t for other reasons or chose not to because of the remoteness between the attempt and the death.  There were cases where the defendant was still serving the initial attempt sentence and the murder charge was admitted to and added on to the sentence.  It would be incredibly difficult either to prove a defendant’s innocence in the murder case after they were convicted of attempted murder or to prove the defendant’s guilt after they were acquitted of the initial attempt charges.  Also, some states limit the amount of time that can pass between the attempt and the victim dying from the attempt.  In California, in order to be charged with murder the victim has to die within 3 years and a day of the initial act.  At common law, the rule was usually a year and a day, because forensic science and determinations of cause of death were not as sophisticated as they are today.

            In Libby’s case the false murder conviction and the possible second murder charge would be separate offenses.  The first murder took place in Washington and was a stabbing and/or drowning death.  The second murder took place 6 plus years later, happened in Louisiana, and was a gunshot death.  The only thing that ties these two crimes together is that the defendant and the victim are the same.  So in this scenario, Libby’s actions are even worse than the delayed murder charge I mentioned before, this is not a murder that happened years afterward as a result of the initial attempt to commit murder.  This is an entirely new crime, completely unrelated to the previous attempt.  If a delayed murder charge isn’t subject to double jeopardy, then a second go at finishing off the victim is definitely not subject to double jeopardy.

            The other important fact is that the two murders take place in separate jurisdictions so if they were somehow considered the same offense, the dual sovereignties principle would apply.  Washington tried Libby for murder under their laws and Louisiana is going to want to try her under their own murder statute.  So regardless of how you look at it, Libby cannot claim that Louisiana charging her for murder would somehow violate her Constitutional rights against Double Jeopardy.

            In the end, to be completely honest, I really don’t think Libby would actually be tried with the second murder.  The facts are just too outrageous that public outcry would likely be enough to prevent Louisiana from charging her with murder and probably Washington would overlook her parole violation and additional crimes and just give her time served because she didn’t actually kill her husband the first time.  The fact that the second murder was also in self-defense and defense of others would be a factor too.  It was probably a justifiable homicide and likely Louisiana would be just as happy to not deal with the whole legally dead, but not dead, but now really dead fact pattern.  It seems that this is how it plays out in the movie because Libby is able to leave the scene and go find her son.  There is no mention of further legal complications.  Just because the facts play out in Libby’s favour in Double Jeopardy does not mean it is sound legal advice.  Double Jeopardy as a procedural protection is never going to be a free pass to commit a crime a second time, even if the first time it was a wrongful conviction.

Thank You for Listening.  This show is researched, written, and recorded by me, Céleste Young.  None of the legal advice or opinions expressed in this episode are intended as specific or individualized legal advice.  Please like, subscribe, rate, or review this podcast if you enjoyed it.  If you have any questions or comments, please e-mail them to Waitisthatlegal@gmail.com.  You can find the Podcast on Twitter, Facebook, and Instagram.

Don’t take legal advice from disbarred, jailhouse attorneys and don’t go sailing alone with your husband after he has taken out a huge life insurance policy.