Saturday, July 9, 2011

Could Casey Anthony Be Re-Charged With Murder?

Many Americans are familiar with a principle of law called "double jeopardy" which prevents the government from charging a person with the same crime multiple times.  This protection, found in the Fifth Amendment to the federal constitution, prevents the government from simply re-trying people until they get a guilty verdict.

However, as with most areas of the law, it is not that simple.  Because each individual state government is considered "sovereign" and distinct from the federal government, certain criminal conduct often violates both state and federal laws.

For example, Casey Anthony was charged by the state government for violating the state prohibition against murder under Florida Statute 782.04(1)(a)(1) which relates to "The unlawful killing of a human being."  As many people now know, Casey Anthony was found not guilty of that charge.

However, the United States government also prohibits murder through federal law.  Specifically, 18 United States Code § 1111 states "Murder is the unlawful killing of a human being with malice aforethought. . ."  In other words, both the Florida government and the United States government prohibit murder, yet only the Florida government attempted to prosecute Casey Anthony for murder.

The Fifth Amendment to the federal constitution provides "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

However, "It has long been the law under the doctrine known as dual sovereignty that federal prosecution following state prosecution 'of the same person for the same acts' does not violate the defendant's criminal rights. Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959); . . .  According to the tenets of dual sovereignty, each sovereign derives its power from a different constitutional source, so both may prosecute and punish the same individual for the same act. See Abbate, 359 U.S. at 193-94, 79 S.Ct. at 669-70."  United States v. Basile, 109 F.3d 1304, 1306-07 (8th Cir. 1997).

For readers who are not well versed in legal citation and are wondering if the court in Abbate v. United States was just some misinformed small town court, I have some bad news.  The court in Abbate was none other than the United States Supreme Court.  Accordingly, it appears that although Florida cannot simply re-try Casey Anthony for murder, the United States may be able to.

In order to put things into perspective, let's carefully read the Casey Anthony indictment (found here: ).  On the third page, it is clear that the full title of the court case is "THE STATE OF FLORIDA VS. CASEY MARIE ANTHONY".  In other words, it is very clear that the prosecution in this case is Florida and Florida only.  On the same page, it is also clear that the court in this case is "THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA".  This simply means the matter was heard in a state court as opposed to a federal court.

Further review of the Casey Anthony indictment reveals charges under Florida Statute 782.04(1)(a)(1) which is found on page three; Florida Statute 827.03(2), Florida Statute 782.07(3), and Florida Statute 827.03(3) which are found on page four; Florida Statute 837.055 and Florida Statute 837.055 which are found on page five; and finally Florida Statute 837.055 which is found on page six.

What do all of these charges have in common?  They are all Florida laws.  To recap: we have a Florida prosecution in a Florida Court for Florida crimes.  Because the Supreme Court has decreed that the United States has its own interest in prosecuting violations of its laws, Casey Anthony may not be safe from a re-trial for murder by a federal prosecutor in a federal court for federal crimes.

Despite the fact that there is a binding Supreme Court opinion which enables re-trying individuals for the same criminal conduct, such prosecution remains highly controversial.  For example, in 1993 the American Civil Liberties Union "affirmed its position opposing double jeopardy, or being tried twice for the same alleged offense."  See

Only time will tell if the federal government wants to brave the political firestorm that would likely result if the United States charged Casey Anthony with murder.

DISCLAIMER: I am not an attorney, nothing on this website is legal advice, and no attorney-client relationship exists between the reader and any author of this blog.