Wanting that second bite at the apple

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

Terance Gamble was a convicted felon, having been convicted of robbery back in 2008.

Seven years later he was pulled over by police for having a faulty headlight. While searching his car, police found marijuana, drug paraphernalia and a gun.

Mr. Gamble was charged under Alabama law with being a felon in possession of a firearm. He pleaded guilty to the charge and was sentenced to a year in prison. He thought that was the end of the matter.

But he was wrong.

For whatever reason, the local US Attorney decided to charge Mr. Gamble with violating a federal statute prohibiting a convicted felon from possession a gun. He argued that the federal charge was a violation of his 5th Amendment protection from being charged with the same crime twice. The courts refused to toss the case because of the doctrine of stare decisis.

You see, there was a long line of precedent finding that a person's 5th Amendment rights weren't violated if he were charged by both state and federal prosecutors for the same offense. Now, to be fair, the elements of a federal crime often differ (if only slightly) from the elements of the state offense. The case that comes to mind is that of the officers charged with beating Rodney King. The officers were found not guilty in state court but they were then charged in federal court with violating Mr. King's civil rights.

The US Supreme Court created the concept we now know as the separate sovereigns doctrine back in the days of slavery. The idea was to prevent states from blocking the return of fugitive slaves. Over the following 170 years, 30 justices have voted to uphold the doctrine, thus creating precedent.

But, and this point cannot be emphasized too much, just because a doctrine has a lineage of precedent behind it, doesn't mean that the doctrine is good or just, or that upholding the doctrine is just. While a certain degree of consistency is needed in our courts, adhering to a policy just because "that's they way it's always been" isn't sufficient justification to adhere to a doctrine created to preserve slavery.

There is no provision in the Constitution that gives the government the right to try a person more than once for the same crime. The separate sovereigns doctrine was created out of thin air by a Court whose duty it was to protect the institution of slavery.

The US Supreme Court heard oral argument on Mr. Gamble's case on Thursday. According to ScotusBlog, Mr. Gamble's attorney, Louis Chaiten, went all-in on "originalism" and focused on 18th and 19th century concerns and reservations about double jeopardy.

But the justices weren't having any of it during oral argument - and although that is not always an indicator of how the decision will go -- it does at least give an idea of the issues the justices will be considering when it comes time to issue a decision. If the questions are any indication, Mr. Gamble is unlikely to get any relief as most of the justices seemed to be concerned with the federal government's ability to prosecute folks - and being able to exert leverage over those caught up in investigations by a special prosecutor.

Justices who are considered liberal defended the doctrine. Justices who are considered conservative defended the doctrine. Justices who are considered "originalists" or "textualist" or whatever other word used to describe their opposition to the concept of a living constitution defended the doctrine.

But the unlikely trio of Ginsburg, Gorsuch and Thomas joined together in questioning the existence of the doctrine - just another reminder that focusing on a narrow range of issues when a person is nominated to sit on the Supreme Court doesn't always predict what a judge will do once he or she is sitting with the Nine in Black.