Constitutional Jeopardy
It is a truism that in America, we may violently disagree with what you say but defend to the death your right to say it. It is equally true that our system of justice is arranged in such a way that we would sooner allow ten guilty men to go free than convict one innocent.
Indeed, there are times when we can recognize what seems a horribly unjust verdict but must defend to the death the freedom of those found not guilty. Consistent adherence to the rule of law in a constitutional republic often requires us to accept, or even actively defend, things we find abominable. We can only be consoled by the reality that a failure to uphold the law consistently is the most certain step toward tyranny.
Such is the sad conundrum regarding Kelly Thomas, a homeless schizophrenic man who was killed on July 5, 2011. What makes his death different from most of the other 14,000+ murders that year was that his life was taken by police officers Jay Cincinelli and Manuel Ramos, and that some of their actions were captured on camera. You can listen to him scream for help while they beat him to death, pleading for his father and saying sorry over and over as he begs for enough air to continue breathing. If you have the stomach for it, you can see what Kelly Thomas looked like in the hospital – how the police beating disfigured him.
Thomas was ultimately beaten unconscious, never woke up and died five days later. But Cincinelli and Ramos were acquitted by a jury last week.
Hard to believe? Yes. One struggles to understand how the jury reached its not guilty verdict. The policemen certainly appear obviously guilty as a matter of fact and morality. Most anyone who watches the video of Ramos calmly donning gloves while Thomas sits in front of him, and says “See these fists … they’re getting ready to f— you up!” and then Ramos does precisely that, must come to the conclusion that he is behaving in a way no police officer should ever be allowed to behave – and in a way that must be seen as criminal in a free society.
But these cops are not guilty as a matter of law. They were acquitted by a jury. The state made its case, the defense made its case, and twelve citizens voted unanimously not guilty. As far as the criminal law goes, it should end there. Sadly for all of us who care about liberty, it has not. The federal government is now looking to prosecute the cops for violating Thomas’ civil rights.
This drives home the truth that we are now approaching a tipping point in our federal justice system. The federal government, if they don’t like the results of a state criminal trial, have become ever more anxious and willing to march in, charge an exonerated defendant with violating the civil rights of the victim and try them again.
Federal criminal charges for violation of civil rights have long been an important tool when state or local authorities refuse to bring charges against a perpetrator due to corruption, racism, or various other reasons. But when the state makes a good faith prosecution, requiring a person to undergo another criminal trial for the same act violates the fundamental double jeopardy protections in the fifth amendment, which states in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”
This means the government cannot put you on trial more than once for the same alleged crime. This is a fundamental protection against the state’s ability to stalk and repeatedly target an individual until they achieve their desired outcome. But the courts do not recognize federal prosecution and state prosecution for the same act as double jeopardy.
At the time of our founding, there were three federal crimes: piracy, counterfeiting and treason. There was no reason to believe or suggest that someone would be charged in both state and federal courts for the same act. Incredibly, with the power of the federal government continuing to rise with each passing day, we now have closer to 5,000 federal crimes.
Federal civil rights criminal statutes and indictments made sound sense when they were enacted to achieve justice for newly freed blacks in the south who were subject to all manner of abuse, often without redress from state authorities. But when state authorities act responsibly and conduct a fair trial, as they did against the killers of Kelly Thomas, it is clearly unconstitutional to subject the accused to a de facto retrial on the same facts .
The emotional and financial costs of being tried for a serious crime are staggering. They must and should be borne if good evidence exists for prosecution, lest we accept a lawless society. But forcing citizens to stand trial twice for the same crime makes a mockery of a right so fundamental that it was included in the Bill of Rights.
Officers Ramos and Cincinelli should certainly never be police officers again. Sadly, many police union contracts allow cops to be rehired with back pay after committing obvious abuses against the citizenry. According to Fox News for instance, “Unions are using their power to get fired police officers back on the job. In Philadelphia, nine out of every ten fired officers have been rehired, according to numbers released by the city’s Fraternal Order of Police. Seventy-five percent are able to regain their full benefits package and reclaim back pay.”
These policemen should have to answer for their actions in civil court – which they will. But just because we are outraged by their actions, and dumbfounded by the jury’s verdict, does not mean we should abandon liberty’s best practices by allowing the state to prosecute them a second time for the same act, in direct contravention to their – and our guaranteed constitutional rights. As Thomas More once said, “I give the Devil benefit of law for my own safety’s sake.”
