A few weeks ago, we discussed the case of an Adams County judge in a bench trial finding a defendant guilty of sexual assault.
Then the judge overturned his conviction in order to release the accused.
The judge claimed he did so in order to avoid having to sentence the defendant to a mandatory jail term which the judge disagreed with.
The Illinois attorney general asked the Illinois Supreme Court to intervene to order the judge to reimpose his original conviction. The court declined to do so, citing that it would be a violation of double jeopardy rights.
What is dual criminality?
No, we’re not talking about a question on the popular game show where a correct answer (or question) wins you double the amount you play for. We are talking about a right found in federal and state (including Illinois) constitutions.
It prohibits a government from retrying or re-convicting a person for committing an alleged crime for which they have already been tried or convicted.
Once a person has been acquitted, convicted or punished for a particular crime, they cannot be prosecuted or punished again for the same crime. This principle of law is rooted in the idea that the all-powerful government with its resources should be prevented from using its power to wrongfully convict innocent people; protect people from financial and emotional harm from multiple lawsuits; prevent the government from simply ignoring trail decisions it didn’t like; and prevent the government from repeatedly bringing harsher charges against the defendants to secure a harsher sentence.
However, the right of dual criminality prohibits a single particular government entity from repeatedly trying or convicting a person.
This does not preclude other government entities from pursuing their own charges arising from the same alleged act or event.
Thus, if the defendant Donald T. is accused, for example, of an act of fraud by a state government and is acquitted, this does not preclude the federal government from charging Donnie with a violation of the federal law arising from that same act or event.
The idea is that a sovereign should not be stepped on by another sovereign who might arrive at the courthouse first. With the exception of some very limited exceptions involving misconduct in the judicial process (jury tampering, for example), a sovereign has only to bite the apple.
So if Donnie T. is acquitted but new evidence is later discovered that is not available at the time of trial, it is difficult.
A notable example of this was the case of the murder of black teenager, Emmitt Till, in Mississippi in 1955. Two white men were tried under Mississippi law and acquitted by a white jury.
The acquitted later admitted to the murders. They could not be charged again because of the constitutional protection against double jeopardy granted to them.
At that time, there were no federal offenses they could be charged with.
Similarly, in the Adams County case, the Illinois Supreme Court found that double jeopardy applied even though the court noted that the judge reversed his own conviction simply to avoid impose the required penalty.
In the game of life, the accused was the winner of this double jeopardy.
And his victim, the tragic loser.
Brett Kepley is an attorney with Land of Lincoln Legal Aid Inc. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.