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Supreme Court likely to keep exception that allows state and federal prosecutions of same crime

David G. Savage, Los Angeles Times on

Published in News & Features

WASHINGTON -- The Supreme Court justices sounded unwilling Thursday to overturn a long-standing precedent that allows a state and the federal government to prosecute a person for the same crime -- despite the constitutional ban on "double jeopardy."

A lawyer for an Alabama man who was prosecuted in both state and federal court for being a felon in possession of a gun urged the court to restore the "original meaning" of the Fifth Amendment protection against double jeopardy.

But his argument ran into surprisingly strong skepticism from both liberal and conservative justices, who said they were inclined to stick with precedent.

"This is a 170-year-old rule," said Justice Elena Kagan. It has been repeatedly upheld by more than 30 justices, and Kagan said she was "uncomfortable" in tossing it out now.

In the 1960s, the U.S. Justice Department used the exception to protect blacks and civil rights workers in the South. If violent crimes against them resulted in acquittals before all-white state juries, federal prosecutors could bring a separate prosecution under federal civil rights law.

More recently in Los Angeles, this doctrine allowed federal prosecutors to charge and convict four police officers in the beating of motorist Rodney King after they had been acquitted of essentially the same charges under state law in Simi Valley.

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Some legal experts said a high court ruling striking down the "separate sovereigns" exception could pose problems for special counsel Robert S. Mueller III and his prosecutions of advisers to President Donald Trump, including his former campaign manager, Paul Manafort.

If Trump were to pardon Manafort for the federal crimes and the Supreme Court eliminated the exception, states could be limited in bringing their own charges for the same crimes.

But during arguments Thursday it looked as if such concerns were premature.

Justice Brett M. Kavanaugh appeared to agree with Kagan. Upholding long-standing precedents "is part of the original understanding of the Constitution," he said, adding that the justices should not overturn such a precedent without clear evidence that it was wrong and unworkable.

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