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Double Jeopardy in jeopardy
Jul 19, 2013
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The trial of George Zimmerman may well mark the beginning of the end of the law relating to Double Jeopardy as enshrined in the 5th amendment to the US Constitution. It is the perfect case for the enemies of liberty, who have been waiting for the opportunity to overturn this ancient and “archaic” protection and it is also the perfect case to demonstrate why its protections are needed more than ever.

The purpose of the 5th Amendment is to protect against abuse of governmental authority in legal proceedings, and right in the middle of it we come across the following clause:

AP_Constitution_5Amendment_DoubleJeopardy“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

I am writing this piece from Salisbury, England, and I currently sit not more than a mile away from one of four remaining copies of one of the most important documents in the world – Magna Carta. The language used in the 5th amendment– life or limb – is lifted directly from the Magna Carta, but though it is often assumed that the law relating to Double Jeopardy dates back to this document, signed in 1215, it is in fact even older than that, dating back to at least the time of the Norman Conquest in the 11th Century. It may even go back further still. Demosthenes, the Ancient Greek jurist, mentions the principle of ne bis in eadim, or ‘not twice for the same thing’, and how it prevented Athenian citizens from being tried twice for the same crime.

Some laws are pretty easy to grasp, while others need an awful lot more thinking about before we realise the point of them. Double Jeopardy very much fits into the latter category. The reason it sometimes appears to be problematic is that we can all think of examples where a prohibition on trying a man for the same crime twice can end up with a guilty man walking free. It could be that the judge or jury was partial. It could be that the prosecution counsel was inadequate. Or it could be that new evidence turns up years after the original trial which seems to point without any shadow of doubt to the acquitted man’s guilt. So why not try him again?

The overarching problem of a system where someone can be tried over again for a crime for which they have been acquitted, is that it is open to the most horrendous of abuses by the state. The specific issues are vast, but here are just some of them:

  • It pits the power and resources of the state against the individual – individuals simply do not have the same means as the state at their disposal to uncover new evidence.
  • It gives massive powers to the state to persecute individuals – individuals seen by the state as problematic can be harassed until they are “disposed of.”
  • It undermines the presumption of innocence – if a man is acquitted in a fair trial, hauling him back before a jury for the same crime leads to the inevitable suspicion that he is guilty and that the first trial was faulty.
  • It means that the state gains a permanent hold over its citizens – Once acquitted of a crime in a country which respects Double Jeopardy, a man is at liberty. In a country where a retrial and even a re-retrial is a possibility, a man acquitted by a jury may have to live the rest of his life in fear of being tried again.
  • It undermines the legal system itselfeither a trial is fair or it is not. In a system where people can be tried more than once for the same crime, the legal system is effectively condemning itself by saying that the first trial was somehow inadequate or unfair.
  • It could mean people being convicted for political or convenience purposes In certain high profile cases where the public demands a prosecution, scrapping Double Jeopardy could mean retrying a man just because he is the only suspect, in order to be seen to be solving a case and assuaging public outrage.

Now the discerning Christian may well ask, “Yes, I can see that, but is this not a man-made law? Where in the Bible is the principle of Double Jeopardy to be found?” The answer is really everywhere, as Dr. Greg Bahnsen pointed out:

“God’s law everywhere presupposes the principle of double jeopardy as a dictate of just dealing with men. No one can simply assume the right to come into judgment over another; the prerogative to judge another man must be delegated (2 Sam 15:4; Ex 2:14; cf. Acts 7:27,35). Consequently, to bring a man into trial and stand in judgment over him with the threat of punishment to him, one must have divine authorization for this kind of activity. Moreover, to go beyond this judgment and make a man submit to ordeal again in the courts is a FURTHER KIND of judgment which must be sanctioned by God’s word. That is, the burden of proof rests on those who would transgress the prohibition of double jeopardy to adduce authorization for their judgmental activity; without it they would be arrogating to themselves authority which does not belong to them.”(1)

He then went on:

“It is uniformly recognized that Scripture prohibits a double infliction of punishment (e.g., the substitutionary atonement of Christ rests on this cardinal point with respect to eternal judgment). Therefore, double trial (i.e., double jeopardy) is ruled out; a man once tried and sentenced is not be subjected to further trial for the same offense. Otherwise the biblical restriction of forty stripes (Deut 25:3) would be senseless; through retrial for the same crime a man could REPEATEDLY be given sets of forty stripes. Thus double trial is forbidden. Now, if this protection is extended even to the guilty, to those convicted of offense, HOW MUCH MORE should the protection be afforded to those who are acquitted as innocent?”(2)

So much for the general tenor of Scripture, is there anything more specific? Well yes there is, as again Dr Bahnsen noted:

“If a man brought a charge of premarital promiscuity against his new wife and it was legally established that she was innocent, the case was terminated with qualification. The slanderous husband could not appeal the verdict and bring his wife into judicial jeopardy again; “he may not put her away all his days” (Deut 22:13-19). Another example of protection against double jeopardy is clearly seen in the legislation about cities of refuge in God’s law. A man who had slain another was to flee to a city of refuge for protective custody until he could stand for judgment in the courts (Num 35:12, 24). If the verdict turned out that he was a willful murder, his life could not be spared (Deut 19: 11-13). However, after declaring his cause before the elders of the city and he is acquitted, then he is thereafter completely released from jeopardy for the crime; the accuser cannot pursue the matter further, appeal the verdict, or inflict anything upon the accused. When it is legally established that he is guiltless, the man is delivered out of the hand of the avenger of blood, the avenger is not given any further recourse against him, and the acquitted is to be restored to his own land and home in complete safety (Num 35: 25, 28; Jos 20:4-6). In terms of God’s righteous ordinances, the jeopardy of an accused terminates upon a favorable verdict (at any level of the legal system).”(3)

Now you may not be aware of this, but the country that gave English Common Law to the world, the one in which I reside not more than a mile from the best preserved copy of Magna Carta, actually abolished Double Jeopardy ten years ago. The Criminal Justice Act 2003 not only abolished trial by jury for some cases, but also allowed for retrials of those acquitted in free and fair trials where “new and compelling evidence” has been found and where it is in the “public interest.”(4)

The background to this astonishing abolition of nearly 1,000 years of legal wisdom has one similarity with the Zimmerman/Martin case: that is, it began with the death of a black teenager. However, there the similarities end. Stephen Lawrence was killed on the streets of South East London in 1993 and by all accounts, there seems to be no doubt that this was an unprovoked attack. Unlike the Zimmerman/Martin case, there also appears to be no question that the killing was racially motivated.(5)

Five men were accused of his murder, but the charges were subsequently dropped as it was deemed that there was insufficient evidence to convict them. The family of the murdered teenager then brought a private prosecution against the five, however the charges against two of them were dropped before the trial due to lack of evidence and the three remaining suspects were acquitted of murder after the trial judge ruled that evidence given by one witness was unreliable.

Off the back of that, a report was ordered by the then government into the handling of the case. The report concluded that the police force investigating the case was “institutionally racist” and also recommended the repeal of the laws relating to Double Jeopardy. The then government, being the foes of liberty that they were, duly obliged and scrapped this ancient protection.(6)

Meanwhile, the suspects who had been acquitted of the murder continued to have the finger of suspicion pointed at them. One national newspaper went as far as labeling them murderers and called on them to sue the paper if they could prove this wasn’t true.(7) So much for the presumption of innocence!

Most people in the country came to believe – rightly or wrongly – that these men were guilty, partly because an undercover video sting against them showed them to be a bunch of racist thugs, and partly because the men were clearly thoroughly unpleasant types, with convictions for things like drug dealing and the racist attack on a police officer. Whether that was enough to prove their part in the murder is another thing.

Nine years after the Double Jeopardy protection was scrapped for some cases, two of the accused were then retried for the murder of Stephen Lawrence and both were convicted. Did they get fair trials? It is impossible to say, but it is extremely improbable since “everybody in the country knew that they did it.”

Something similar is almost certainly now going to happen off the back of the Zimmerman case. Unlike the Stephen Lawrence case, which was clearly a case of cold-blooded murder, Zimmerman’s case rested on the claim of self-defense. This clam was clearly believed by the jury, but this is not good enough for the liberals. They have decreed that George Zimmerman is a racist and is guilty of the racially motivated murder of the wholly innocent Trayvon Martin, and they must get their man. The jury felt otherwise, but it won’t stop the liberals using the case for their cause.

This is why Double Jeopardy is so important. A whole political movement is now clamoring for a retrial, and of course they won’t be satisfied until the right answer is reached, which is the conviction of George Zimmerman. Do you think he could get a fair hearing now? If they could find a group of twelve totally impartial people committed to justice, truth and righteousness regardless of skin color, and with the courage to reject the onslaught of the liberal media telling them what verdict they must reach, then it might be possible. But as you know, such people are becoming harder to find.Endnotes:

  1. http://www.cmfnow.com/articles/pe019.htm()
  2. Ibid()
  3. Ibid()
  4. http://en.wikipedia.org/wiki/Criminal_Justice_Act_2003()
  5. Ibid()
  6. Ibid()
  7. Ibid()
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About author

Rob Slane

Rob Slane lives with his wife and five home-educated children in Salisbury, England. He is the author of The God Reality: A Critique of Richard Dawkins' The God Delusion, and a soon-to-be-released book, A Christian & an Unbeliever discuss Life, The Universe & Everything. He is a regular contributor of worldview pieces for Samaritan Ministries International and for the Canadian magazine, Reformed Perspective. He also blogs once or twice a week on cultural issues from a biblical perspective at www.theblogmire.com.

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