Double Jeopardy: Getting Away With Murder

Aug. 4, 2011— -- For an obscure constitutional clause, the concept of double jeopardy is getting a lot of attention these days.

Roger Clemens attorneys recently filed a motion claiming double jeopardy, arguing that the baseball great shouldn't be tried again for perjury because doing so would violate his constitutional rights. And after Casey Anthony's surprise not guilty verdict many outraged members of the public wondered if prosecutors could have a do-over if new evidence surfaced in the death of her daughter, Caylee.

And there's the case of 27-year-old Isaac Turnbaugh of Moretown, Vt., Turnbaugh had been acquitted in the murder of a co-worker back in 2004. But he recently called police in Randolph, Vt., and, according to the cops, confessed to the killing. But, because of double jeopardy, Vermont's Attorney General William Sorrel says his hands are tied.

"The concept of double jeopardy is well established in counstitutional law and our system is not perfect but it's a good system and it works more often than not. We regretted the outcome of the first trial and this more recent information just reinforces our view," he said.

The double jeopardy clause of the Fifth Amendment of the U.S. Constitution says, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

OJ Simpson may be the most famous name associated with double jeopardy. In 1995, Simpson was acquitted in the killing of his ex-wife Nicole Brown Simpson and her friend Ron Goldman. The verdict that didn't sit well with the public. Then 11 years later it came to light that Simpson was writing a book tentatively titled "If I did it" and reportedly including graphic and detailed scenes that "hypothetically" described how the killings might have occurred. Outrage ensued and the book was dropped.

But the situation left many scratching their heads, wondering why Simpson could not be re-tried for the murders if he confessed or if new details about the crime came to light.

"It's about fairness to the defendant. The law says we're not going to give the government multiple times to prosecute you. We are going to value finality more than we value the truth," said Dallas-based attorney Tom Melsheimer, a Managing Principal with the law firm Fish and Richardson in Dallas.

Melsheimer added that it forces the prosecutor to make their best case the first time out. There are exceptions, of course. In the case of a hung jury, a defendant can be re-tried. And if federal charges apply, a defendant might be acquitted in a local trial but still charged and convicted of federal crimes. Melsheimer pointed to the civil rights era as a time when many defendants were acquitted in local courts but subsequently charged and found guilty of civil rights violations.

Isaac Turnbaugh was arrested in 2002, four months after his co-worker Declan Lyons was found shot through the head at the American Flatbread Company in Waitsfield, Vt. During opening arguments in 2004 then Assistant Attorney General John Treadwell told the jury: "At the close of the case, you will have no doubt ….Isacc Turnbaugh willfully, deliberately and with premediation unlawfully killed Declan Lyons."