Separate Sovereignty and Double Jeopardy: Investigating Darren Wilson

You can’t turn on the news these days without hearing about Michael Brown, an unarmed teenager in Ferguson, MO who was killed by a police officer. The evidence is currently being presented to a grand jury in St. Louis, and we expect that this particular case will be taking up a lot more air time. There’s no guarantee of a trial, by the way – all this presentation could conceivably lead to nothing, though “nothing” seems an unlikely outcome.

From a legal perspective, however, this case has an interesting complication: both state police and the FBI have been involved in the investigation, which means both local and federal courts have the right to pursue a case against Darren Wilson, the police officer who shot and killed Michael Brown. So far, both the state and the federal governments are moving forward with their investigations.

So why can a case be brought against Wilson by the state and federal governments and NOT be considered double jeopardy? There’s a doctrine called separate sovereignty, which allows two separate entities to pursue a case without violating the double jeopardy clause of the 5th amendment (which states that a person cannot be tried for the same crime twice).

But double jeopardy isn’t a real concern here, because the investigations are looking into two separate things: local authorities are investigating whether or not Darren Brown should be brought up on charges of murder, manslaughter or assault. The federal government is investigating whether or not Darren Wilson violated Michael Brown’s civil rights.

Potential hiccups in the cases

Both state and federal prosecutors face a steep climb in these cases, for a variety of reasons. First, the prosecutor’s office works hand-in-hand with police officers all the time. By prosecuting a police officer, they could strain that relationship. This often makes prosecutors reluctant to bring a case against a cop, a fact which protestors have noted. They demanded that prosecutor Robert McCulloch be released from this case, but the governor denied their petition.

Second, people are usually reluctant to convict a police officer of misconduct – no matter what the court of public opinion tells you in the media. Deep down, most people believe that police officers need the freedom to do their jobs to keep the rest of “us” safe, and if less-than-honorable methods are used… well, so be it. Wilson will claim self-defense, one of the only two allowable reasons for excessive force (see Tennessee v. Garner, 471 U.S. 1 – 1985) by a police officer, and if the jury believes him, he’ll avoid conviction.

Finally, the federal government must prove that Darren Wilson violated Michael Brown’s civil rights in order to move forward. Simple murder (which is a possible charge) is not a federal crime, and thus cannot be tried in a federal court. If the Department of Justice cannot prove a civil rights violation, they won’t have anything to prosecute.