Let’s get the obvious out of the way up front. Reprosecution does not violate the double jeopardy clause because of the dual sovereignty doctrine. The doctrine runs contrary to the theory behind, and the principle of, the double jeopardy clause, which would preclude multiple prosecutions for the same conduct after acquittal, but the courts say they can do so, and do so they can.
But there once was something called the Petite Policy that precluded the bludgeon of a federal prosecution to come down upon the head of a state defendant who had the effrontery of being acquitted. How dare he? This shall not stand.
A federal jury deadlocked Thursday in the trial of Brett Hankison, a former officer with the Louisville Metro Police Department who was charged with violating the civil rights of Breonna Taylor and her neighbors when he fired 10 shots during a March 2020 raid gone horribly wrong.
It’s a trial that never should have happened.
No doubt you caught that name, Breonna Taylor, an innocent woman killed in nighttime raid gone horribly wrong. Hankison was tried for his role in the raid, shooting from outside into Taylor’s apartment after gunfire broke out. He wasn’t the cop who killed Taylor, but he could have been, or he could have killed the family in the apartment next door where his bullets ended up.
The state tried him for his actions and he was acquitted. So the feds decided to try him again for violating her civil rights, as the killing of Taylor became iconic during the George Floyd Window. It’s not that Taylor was the first, or only, person wrongfully killed by police, but her killing, like Floyd’s, took on a symbolism that demanded conviction. If a state jury wasn’t going to give the people what they demanded, then the feds would do the trick.
Except the trial ended in a hung jury.
But Hankison has already had his day in court. He was the only officer charged at the state level. And he is now facing not his second but his third trial for his conduct that night, as the DOJ has reportedly indicated it will move forward with another prosecution attempt in federal court.
Much as the same cohort that demands “justice” for Taylor would have screamed just as loudly but in the opposite direction had the defendant been anybody but a cop involved in the Breonna Taylor killing, there was no justification for the feds to take up arms against Hankison after he was acquitted by the state because of the Petite Policy.
This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.
Of course, the squishy language of “substantial federal interest” and “demonstrably unvindicated” provides enough room to drive a sophist’s truck through. But it was understood to require far more than empty rhetoric about constitutional rights, that apply to pretty much any conduct committed by a state actor like a cop, which would render the policy prohibition meaningless. Was there something separate, distinct and “substantial” about the facts of the case that distinguished the federal interest from any other case in which police wrongfully killed an innocent person in her home in a misbegotten nighttime raid? Not really, other than the victim was Breonna Taylor and, well, she’s Breonna Taylor, a symbol of black lives matter and someone for whom all involved cops must be punished.
The results of the raid on Taylor’s apartment were hideous, and people are certainly entitled to their views on who should pay a price. Police officers, after all, are often protected from consequences for their misdeeds. That’s wrong. Yet that wasn’t the case here: Hankison had to account for his actions, in public, and to people he worked for as a police officer, in the form of a criminal trial in state court. As a former cop, Hankison should not be above the law. But contra federal prosecutors, the law also shouldn’t be above him.
A point made regularly, and just as regularly disputed by the unduly passionate, is that the principle behind, and against, multiple and successive prosecutions following an acquittal is either wrong for all or not. If the reaction is that it’s wrong when the defendant is of a marginalized race and class, but right when the defendant is a cop or the victim is a social justice icon, then there is no principle at play. If we like him, he should walk. If we don’t, he should fry.
Hankison is hardly a sympathetic character. His conduct was awful, and it happened to be awful during a raid that has come to embody much that’s deeply wrong with the police and their tactics. But that doesn’t change the fact that he was tried and acquitted by the state. Then tried and hung by the feds. And he will be tried yet again by the feds. Even though it slips through the technical rationale of the otherwise dreaded dual sovereignty loophole, it offends the principle of successive prosecutions until we finally “get” that bad dude we really want to get. Just keep at it until we can convict him of something is not the way this system should work. Not for the guys we like. Not for the guys we hate. Not for anyone.