Double Jeopardy Double Take

Greg Ordy, June 1999

In my essay, Justice, Not Fairness, I suggested that we are making a mistake by using the justice system to seek fairness, as opposed to justice. Justice can be considered to be a process, a process which is consistently applied to all situations so that each citizen will know with certainty the results of a given (often illegal) behavior. Justice is blind. Fairness can be considered to be a judgement of the correctness of an outcome. Fairness will always be subjective, something in the eye of the beholder. Since the government has entered into the business of making people happy, and promoting fairness, it's logical to conclude that single outcomes will never be universally considered fair. So, we need multiple outcomes.

One of the principles of the justice system, in our Bill of Rights, and rooted in common law, is double jeopardy. Amendment 5 of the U.S. Constitution states:

    ...; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...

This concept has been perverted and trashed. If we don't like the outcome of the  Rodney King state trial, we will simply have another trial at the federal level. If we don't like the O.J. Simpson criminal verdict, we will have a civil trial. The same testimony, the same evidence, the same witnesses. Over and over again, the national soap opera. The national blood sport. We change just enough to avoid double jeopardy technically, but certainly not practically.

In the case of O.J. Simpson, we are led to believe that he was innocent of murder by reasonable doubt, but that he was the cause of wrongful death by a preponderance of the evidence. Can we really dance on the head of that pin? Is this not a distinction without a difference?

It is my fear that we will increasingly see juries visit the same facts over and over and over again. When private parties simply want to bash themselves over the head, I'm happy to step aside. But I am concerned that the tremendous power of the government, with its substantial resources, will hunt and haunt citizens, not for justice, but to promote itself as being fair. This is truly perverse, and yet we are watching it happen.

There is a joke floating around that a federal prosecutor once said that they could indict a ham sandwich. Sadly, they can probably convict it as well - the first time, or the second time, or the third time...

Copyright (c) 1999, Greg Ordy

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