Unconstitutional Double Jeopardy for Senator Menendez?
In November of last year ten of twelve jurors found that Senator Menendez was innocent of all charges of corruption. That should have been the end of the matter, since a clear majority of those who heard all of the facts found the Senator innocent of all charges. However, the Justice Department intends to try him again anyway. This re-prosecution is unfair, unjust and clearly unconstitutional. The Double Jeopardy Clause of the Fifth Amendment provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
The Courts Got it Wrong for Nearly 200 Years
In 1824, the Supreme Court, in a brief ruling, United States v. Josef Perez, 22 U.S. (9 Wheat) 579, held that Perez could be retried following a hung jury. Courts have been citing this case erroneously for the proposition that the Fifth Amendment's Double Jeopardy Clause allows re-prosecution following a deadlocked jury. Neither the Fifth Amendment, nor the Double Jeopardy Clause, were even mentioned in this brief, unanimous decision. This failure to refer to the Constitution was not inadvertent. In 1824, the hung jury question did not implicate the Double Jeopardy clause of the Fifth Amendment. At that time, the Court adhered to the English common law view that jeopardy did not attach until a verdict was rendered.
Jeopardy Attaches When a Jury is Empaneled
The Supreme Court has definitively ruled that jeopardy attaches when a jury is impaneled and sworn. This rule has been raised to constitutional status and made applicable to the states. Crist v. Bretz, 437 U.S. 28 (1978). In that same year in Arizona v. Washington, 434 U.S. 497 (1978), the Supreme Court ruled that because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's "valued right to have his trial completed by a particular tribunal." The reasons why this "valued right" merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. 434 U. S. 504.
Application to Senator Menendez's Case
Keep in mind that 10 of the 12 jurors in Senator Menendez's case found him innocent of all charges. The chances of him being convicted on retrial are not great. However, with virtually unlimited prosecutorial resources, the federal government can ruin his reputation and bankrupt him financially. Retrial after a hung jury not only runs roughshod over the defendant's repose interest (the right to enjoy life) but more significantly, subjects him to an unacceptable risk of unjust conviction.
Senator Menendez has already paid a heavy price for the charges brought against him. He has spent millions of dollars to defend his freedom and his honor. His poll numbers have dropped to 30 percent. He is also up for re-election this year. The Senator should not be subject to retrial because, under modern Supreme Court rulings, the Double Jeopardy Clause would be violated because jeopardy attaches once a jury is impaneled and sworn in. Retrial at this point seems more like political retribution than justice. Let the voters in New Jersey decided if they want to be represented by Senator Menendez.