But the feds came up with an end-run around the double jeopardy clause. They got the Supreme Court to buy into the dangerous notion that even if, say, the feds failed in a mail-fraud prosecution, state authorities could follow with a simple and direct fraud prosecution, since technically the two governments are separate and the two charges are slightly different. This notion gained respectability when federal prosecutors in the Deep South followed up state acquittals of white racists for murdering black civil-rights activists with federal prosecutions for violation of the activists' civil rights (that is, their civil right to exist). More recently the jurisdictional trick that allows multiple prosecutions for the same offense has been perverted into an evasion of the constitutional protection against double jeopardy on a host of crimes. In the Arroyo case, the prosecution should have been brought by state authorities in the first place, and the feds should have butted out where they had no legitimate interest.
If the news media really want to help protect civil liberties and constitutional rights, they will exhibit more skepticism, and more fidelity to important values such as local authority to prosecute local crime as well as the historically vital protection against putting a person twice in jeopardy. It may all seem too highly technical to some, but 12 federal jurors in Massachusetts got it. It's not, as the saying goes, rocket science. All Americans owe the Arroyo jurors a debt of gratitude, for presumably holding their noses in the face of likely egregious pension abuse while doing what the Constitution required of them. May the news media learn an important civics lesson from this jury composed not of dumbbells, but rather of good citizens. ^
Harvey Silverglate is the author of Three Felonies a Day: How the Feds Target the Innocent, released this past June in paperback from Encounter Books. Paralegal Daniel R. Schwartz provided editorial assistance.
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