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The Case Against Double Jeopardy Laws

Juan Bravo Fernandez was the president of one of Puerto Rico's largest private security firms. Hector Martinez Maldonado was a Puerto Rican senator who served as chairman of the public safety committee, a position that put the fortunes of security companies in his hands.

Fernandez allegedly wanted a vote to buy, and Maldonado allegedly had a vote he wanted to sell.

In exchange for cash and an all-expense-paid trip to see a big-time boxing match in Las Vegas, Maldonado agreed to approve bills that would benefit Fernandez and his business, according to the FBI.

That was more than a decade ago, in 2005. Fernandez and Maldonado were both convicted on federal bribery charges in 2011, but the 1st U.S. Circuit Court of Appeals tossed out those convictions two years later.

The convictions weren't thrown out because new evidence had come to light casting doubt on the case, nor did the two accused men win an appeal. An allegedly corrupt businessman and a politician who was entrusted with overseeing a significant aspect of local government walked free because prosecutors made a mistake while instructing jurors in the original trial, according to SCOTUS blog.

Now, prosecutors want another crack at the two men, but their lawyers aren't having it. They say another trial would violate the Fifth Amendment's Double Jeopardy Clause, which prevents prosecution for the same offense after conviction, acquittal or certain mistrial circumstances.

The Supreme Court has agreed to take the case.

There are good reasons for the Double Jeopardy Clause. The first is that a jury's decision should bring closure to a case. If prosecutors can simply hit the reset button and try again, prosecuting crimes becomes less about guilt or innocence, and more about hunting for the right jury.

There's also the little man versus the big bad government argument, which is probably the most compelling. The government has considerable resources. County district attorneys have entire rosters of prosecutors and support staff, while federal prosecutors have some of the brightest attorneys, as well as the resources of federal investigative agencies like the FBI.

Simply put, it's not fair to allow prosecutors to keep bringing the same charges against the same person. A malicious prosecutor, or a prosecutor who has taken a case personally, could win by attrition, wearing down a defendant's finances until they can no longer afford a defense. That's not how the law is intended to work.

And yet, invoking the Double Jeopardy Clause has become a favored play among allegedly corrupt politicians playing the long game. These are deft political operators, most of them attorneys themselves, who have the resources and allies to work the angles and get convictions vacated.

Former Democratic Gov. Rod Blagojevich of Illinois alleged prosecutors violated the Double Jeopardy Clause during the years-long legal drama that followed his indictment on bribery charges. Republican Sen. Joseph Bruno of New York, who was one of the state's notorious power-brokers, tried to use the Double Jeopardy Clause to escape a retrial on corruption charges. Former Democratic Pennsylvania Senate Minority Leader Robert Mellow similarly sought protection under the Double Jeopardy Clause after he was convicted of a conspiracy charge.

Maldonado and Fernandez have good attorneys who know good odds when they see them. It's not surprising they borrowed a routine from the corrupt politicians's playbook to avoid prosecution on a technicality, not on the merits of their defense.

The Double Jeopardy Clause is supposed to protect ordinary Americans from powerful government bigwigs. It was not meant to be a shield for corrupt politicians.

There are no easy answers when it comes to the Double Jeopardy Clause. Like everything else enshrined in a constitutional amendment, it's viewed as almost sacrosanct. Any attempt to rewrite or reinterpret the clause must follow a path fraught with political and legal land mines.

But as the Supreme Court considers the circumstances of Maldonado and Fernandez, justices should keep one thing in mind above all else: Americans expect justice, and allowing allegedly corrupt politicians to keep their get out of jail free card will shake Americans' faith in the criminal justice system.

Click here for the opposing view on this topic.

Sources: Reuters, FBI, CNN, New York Daily News, Triblive / Photo credit: Wikimedia Commons

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