“Double Jeopardy” is Constitutional in a Dual Sovereignty Case

A trio of southern Utah residents are being charged twice for the same crime, otherwise known as double jeopardy, but since the charges stem from a dual sovereignty case it is considered constitutional.

Custody battle ends in murder

Photo by: Joe Gratz

Photo by: Joe Gratz

After years of custody battles between 30 year old David Heisler and 32 year old Kelley Marie Perry, Heisler was awarded sole custody of their 6 year old daughter Mariah. Less than two weeks later, prosecutors state Perry drove to Heisler’s residence with her friends 56 year old Francis (Frank) Lee McCard and 54 year old Tammy Renee Freeman. When Heisler answered the door, Perry and McCard physically assaulted him, dragged him from his house, then the trio drove him in his own vehicle to the Arizona desert where his lifeless body was discovered eight weeks later.

Utah, Arizona, and the Federal Government

Perry, McCard, and Freeman have been charged in Utah on felony kidnapping, theft, and burglary charges. Since the crime began in Utah and ended in Arizona, it is considered a dual sovereignty case. So not only do the three face charges in Utah, but the state of Arizona has filed their own charges including a repeated charge of felony kidnapping as well as first degree murder which could carry the death penalty. Not only are Utah and Arizona involved, McCard has been federally indicted and an indictment is pending for Perry as well. This means they may face even more repeated charges but at a federal level to boot.

Dual sovereignty case is not double jeopardy

dual sovereignty

Photo by: Ron Cogswell

While a dual sovereignty case may seem like a way to be repeatedly prosecuted for the same crime (double jeopardy), it does not violate a person’s Fifth Amendment rights to not “be subject for the same offense to be twice put in jeopardy of life or limb”. This is due to what is known as dual sovereignty doctrine, meaning that more than one state or court has authority over the case. Although occasionally one state or court will give up their jurisdiction as long as the defendant is facing charges somewhere. This is not always the case though and it is important to know when dual sovereignty may take place. Dual sovereignty due to a multi-jurisdictional case can occur for a few different reasons. Those can include:

• When the crime occurs in more than one state. For example, the David Heisler murder which took place in both Utah and Arizona. This is also a common for crimes such as drug and sex trafficking.

• If there are civil and criminal charges, as they are not handled by different courts.

• When there are both state and federal charges. Both the state and the federal government can press charges in some cases. When this happens, the federal charges do not dissolve the charges from the state. This can result in someone serving time in federal prison followed by state prison or vice versa.

• If the crime occurred in a different state from whence the defendant or victim resides. This is a common occurrence with crimes involving identity theft such as fraud.

• If more than one federal court has filed charges against the defendant.

Defense lawyer(s) needed

When it comes to a dual sovereignty case, a person facing charges needs more help than usual. It is important to speak with an experienced criminal defense attorney who can work to help eliminate dual sovereignty in a case or who is willing and able to operate across state lines or work side by side with legal representation in other states or federal courts where other or repeated charges may exist. Anyone facing charges that may involve more than one state or court should speak with a defense attorney immediately.

The Right to Remain Silent – Understanding the Miranda Warning

The Miranda Warning is given to suspects prior to questioning and understanding this right to remain silent is critical to prevent self-incrimination.

“Book ’em Danno”

Photo by: houstondwiPhotos mp

Photo by: houstondwiPhotos mp

The Miranda Warning is heard by thousands of people every day while enjoying their favorite police or detective show on television. During many series’, popular catch phrases are offered following the highly anticipated arrest of a suspect. One such phrase is: “you have the right to remain silent.” Unfortunately, large majorities of the public hear this repeated on a regular basis yet fail to understand it is a warning of their constitutional right to remain silent.

Miranda v. Arizona

The Miranda Warning became the norm following four major cases, one being Miranda v. Arizona, in which suspects were interrogated at length, and as a result offered full admissions to their crimes. Each of the suspects was not made aware before or during their interrogation that they had a legal right to stay silent. The Supreme Court determined that Fifth Amendment rights had been violated, and reversed the ruling on three of the four cases.

1966 Supreme Court Ruling

Photo by: Matt Wade

Photo by: Matt Wade

The Supreme Court stated: “The prosecution may not use statements ( . . . ) stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Also that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely.” Thus followed the Miranda warning in which a defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

Constitutional right to remain silent

Right to Remain Silent

Photo by: Craig Sunter

The right to remain silent spoken of in the Miranda Warning is derived from the Fifth Amendment which stipulates: “[no person] shall be compelled in any criminal case to be a witness against himself”. Therefore, no one has to answer questions which would aide in a criminal case brought against them. Thus if the suspect, whether guilty or innocent, fear they may say something to incriminate themselves, they are allowed by law to not respond to questions asked by authorities. If they do offer information to police openly or during questioning after the Miranda Warning is given, that information and any evidence resulting from it is admissible in court.

Delayed or lack of Miranda Warning

The Miranda Warning is typically given shortly after the handcuffs are placed on a suspect, yet legally can happen any time before the interrogation begins. Interrogation doesn’t always transpire in a cement room with a two way mirror; interrogation can be any questioning done by authorities after an arrest is made. If information is obtained through questioning prior to Miranda Warning, said information, and any evidence obtained because of it has the possibility of being thrown out.

Invoke rights and call an attorney

Photo by: Martin Cathrae

Photo by: Martin Cathrae

While everyone is allowed their Fifth Amendment rights, it is important to let authorities know those rights are being invoked, and that the suspect is not merely playing the silent game. Silence without invoking Fifth Amendment rights may be seen as evidence of guilt. Additionally, once someone has announced they are using their right to stay silent, they should immediately retain legal counsel, another right declared in the Miranda Warning. A reputable criminal defense attorney will aid their client in only offering non-implicating statements while ensuring that no constitutional rights are violated.