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Bizarre SCOTUS Trio Emerges from Double Jeopardy Case with Potentially Major Consequences


The Supreme Court of the United States just handed down a 7 to 2 ruling the case of Terance Martez Gamble, a convicted robber whose case has potentially major implications for Donald Trump‘s associates who have faced or may face legal troubles. If a dissent team of Neil Gorsuch and Ruth Bader Ginsburg was unlikely, throw a like-minded concurrence by Clarence Thomas into the mix and you’ve got a truly bizarre trio. 

The Gamble case asked whether separate sovereignty should continue to exist within the context of exceptions to double jeopardy. The U.S. Constitution guarantees a right against double jeopardy – but only when we’re talking about someone being prosecuted twice by the same sovereign. In other words, federal prosecution followed by state prosecution for the same offense isn’t constitutionally prohibited. In fact, the potential for multiple prosecutions is just what New York State and others have been counting on in the event or certain pardons.

Terance Gamble fell prey to just this legal anomaly. He was a convicted felon who was pulled over for a broken taillight; Alabama cops searched Gamble’s car and found marijuana and a handgun, which lead to Gamble’s state conviction for possession of the contraband. Unusually, during the Alabama’s prosecution, Gamble was also charged with the same crime, based on the same incident, under federal law – a charge that added three years to his sentence.

Neither Alabama nor the feds could have prosecuted twice, but each could have one go at Gamble without offending constitutional guarantees. A win for Gamble would have been significant within the world of criminal law generally, but would also have handed some major protection to those at risk for successive prosecutions as a result of Trump-related dealings.  

Writing for the Court’s majority, Justice Samuel Alito delivered an opinion that was essentially an ode to federalism:

A close look at them reveals how fidelity to the Double Jeopardy Clause’s text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.

Justice Thomas, though, was unusually dedicated to a pragmatic analysis; he agreed with the the majority that Gamble should be subject to a secondary prosecution – but wasn’t sold on its reasoning grounded in history and precedent.  Thomas started his concurrence by dispensing with any arguments about the founding fathers, since they’d never have dreamed of a Terance Gamble situation:

The founding generation foresaw very limited potential for overlapping criminal prosecutions by the States and the Federal Government.The Founders therefore had no reason to address the double jeopardy question that the Court resolves today.

Thomas then went on to give everyone a nice little lecture about stare decisis – the legal principle that courts should adhere to past precedent. In a dissent that would seem practically progressive if we didn’t know it was laying groundwork for a Roe v. Wade reversal, Thomas opined that stare decisis should crumble when an error needs correcting:

This view—that demonstrably erroneous “blunders” of prior courts should be corrected—was accepted by state courts throughout the 19th century…

Accordingly, judicial decisions may incorrectly interpret the law, and when they do, subsequent courts must confront the question when to depart from them.

When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.

Justice Thomas also included a nice shout-out to Justice Gorsuch on his flexibility on the double-jeopardy issue:

JUSTICE GORSUCH does an admirable job arguing against our longstanding interpretation of the Double Jeopardy Clause.

For her part, Justice Ginsburg stuck primarily to an analysis of general fairness within the context of criminal procedure. While the implications for Trump and/or his associates was likely not lost on Ginsburg, she confined her opinion to the case at hand. Her take on multiple prosecutions by separate sovereigns can be reduced to, “it’s not fair and everyone knows it,” – and RBG wasn’t having any justification for this injustice from the land of stare decisis:

Our adherence to precedent is weakest in cases “concerning procedural rules that implicate fundamental constitutional protections.” Alleyne v. United States, 570 U. S. 99, 116, n. 5 (2013). Gamble’s case fits that bill. I would lay the “separate-sovereigns” rationale to rest for the aforesaid reasons and those stated below.

Justice Neil Gorsuch was apparently on the same page as Ginsburg, and called out the majority for “endors[ing] a colossal exception to this ancient rule against double jeopardy,” despite the fact that, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.” Ouch.

Gorsuch wasn’t done there, either. He rolled out a step-by-step hypothetical to illustrate how the unfairness would seem to those in situations like Gamble’s:

Viewed from the perspective of an ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise. Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquittedin the state case. None of that offends the Constitution’s plain words protecting a person from being placed “twice . . . in jeopardy of life or limb” for “the same offence.” Really?

While court-watchers likely will likely split on issues of federalism and stare decisis, I think we can all get behind one thing. We’re now living in a world where Supreme Court justices dissent with “Really?” and it’s perfectly amazing.

[Image via Chip Somodevilla/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos