Tulsa Attorney BlogRe-Prosecution in Federal or Tribal Court after McGirt Dismissal Doesn’t Violate Double Jeopardy

Double Jeopardy Means You Cannot Be Prosecuted Again for the Same Offense

Video Transcribed:  Why repercussion in federal or tribal court does not violate double jeopardy after a McGirt dismissal. I’m McGirt attorney, James Wirth. And we’re talking about double jeopardy and how that factors into McGirt and all of these dismissals that are going on in state court.

So obviously double jeopardy, that is under the 5th Amendment to the US Constitution. And it provides that nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. And what that means is once somebody has been prosecuted for an offense, they cannot be prosecuted again for the same offense.

However, going all the way back to Fox V. Ohio in 1847 and subsequent cases too that there is a long history for what they call the Dual Sovereign Doctrine or the Separate Sovereigns Doctrine. And what that provides is that double jeopardy attaches only to the specific crime.

attorney in OklahomaAnd if that crime is a crime under state law and also a crime under federal law, those are two separate crimes and those are two separate entities and it does not apply to prevent the other entity prosecuting under their crime, which is a different crime, even though it’s related to the same facts.

So that 5th Amendment obviously applies originally just to the federal government. However, it was incorporated through the 14th amendment to apply to the states as well in Benton V. Maryland, which means that the state cannot prosecute somebody, and then the state reprosecute that person for the same offense.

If you get acquitted the first time, the state does not get another bite at the apple, for example. Or if you get punished the first time, they cannot punish you again for the same offense. However, if the first one is state and the second one is federal, that is allowed by the separate sovereignty doctrine.

And if the first one’s federal and the second one states, then that is allowed as well. This has also been applied to the tribes, going back to the Wheeler V. US case in 1978, that in that case, it was originally charged by the tribe.

And then it was charged in federal court. The court there determined it does not violate double jeopardy because of the Separate Sovereigns Doctrine, as it applies to the 5th Amendment and double jeopardy.

So this was actually recently taken up by the United States Supreme Court in the Gamble case in 2019. There was a little bit of move based on some of the opinions away from the Dual Sovereignty Doctrine. So there is some movement on the United States Supreme Court to maybe get rid of that.

And some thought that might actually happen in the Gamble case and ultimately did not. They affirmed that Separate Sovereigns Doctrine, however, based on some of the concurring or dissenting opinions, there was an indication that it’s moving more towards the direction.

So in the future, that may be overruled, but as it is for now, if it’s a separate government, then double jeopardy does not apply to charges that were in a different government. So hopefully, that answers that question.

If you’re under those circumstances where you’re facing prosecution under McGirt or a related matter, you’re going to want to talk to an attorney about your specific case, get confidential information rather than this general information that’s available through this video.

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