Lots of people facing federal criminal charges are surprised by some rules that are based on decisions from the United States Supreme Court. One of the dumbest rules that confounds most regular folks is what lawyers call the “dual sovereignty exception” to the Constitutional protection against double jeopardy. Even school kids know that part of the Fifth Amendment to our Constitution guarantees that no one shall “be twice put in jeopardy for the same offense.” However, many years ago the Supreme Court came up with the fiction that a State (like Georgia, or Alabama) is a separate “sovereign” or government from the very different “sovereign” that is the government of the United States itself. In other words, the feds are different from the states. The unfortunate corollary to this principle of separate sovereigns is that you can win a criminal case in federal court, and a state can bring the very same charge against you without violating the double jeopardy rule. First time I had this happen, I was livid, for we’d cheated the other side fair and square in the first State-court trial and it seemed so grossly unfair to let the feds have a second whack at my client.
So, the Supreme Court has a new case that was argued today that might be the vehicle through which they change this dumb old dual-sovereignty double jeopardy rule. The case is Terance Gamble v. United States. The case began in 2015, when Gamble was pulled over by police for having a faulty headlight. The cop smelled weed, searched Gamble’s car, and found two bags and a gun. The great State of Alabama charged Gamble with violating state drug laws and with being a previously convicted felon in possession of a firearm. Mr. G. got one year in prison. Then the feds picked up the exact same case, and brought the exact same charge of being a felon in possession of a firearm. Mr. G. got almost 4 additional years for the federal case, was understandably pissed, and appealed. In kind of a surprising move, the Supreme Court finally accepted the case for review. Continue reading