Isn't this Double Jeopardy? Missouri man indicted, accused of murdering 20-year-old son

[The Professor]

There is something in the law called the Delayed Death Exception of double jeopardy. Here is how one source describes it:

“A Bronx County judge ruled that double jeopardy did not apply to a murder charge against a defendant who had already spent 11 years in prison for attempted murder for the same shooting. The man he was originally convicted of shooting survived, but the bullet remained in his spine. 19 years after the defendant was released from prison, the man he was convicted of shooting suffered an infection due to the bullet and died.

“Although the exclusion from the double jeopardy rule applies only to murder cases, caution should also be taken in other cases. A prosecutor might bring a future charge, arguing that newly discovered victims, damages, or acts were part of a separate course of conduct from the original charge and not subject to the double jeopardy rule. Even if a judge later disagrees, there is still a risk of arrest and having to defend the new charges. To eliminate the risk of future prosecution, the plea bargain should explicitly state, in writing or on the record in open court, that it covers all acts and results arising from the same course of conduct.”

All About Double Jeopardy in Delayed Death Murder Cases

In one case, defendant Ronald Latham pleaded guilty to attempted murder and was sentenced to 7 ½ – 22 ½ years. One month later his victim Marie Shambeau had a stroke and died.

“Soon after, the Rensselaer County District Attorney's office indicted Mr. Latham on a charge of second-degree murder, arguing that his case fit the delayed-death exception to double jeopardy law. Second-degree murder carries a minimum sentence of 25 years to life.

“Mr. Latham challenged the indictment, arguing that a 1983 Court of Appeals ruling said that a person convicted of a lesser crime could be later charged with murder only if the first conviction was for a "nonhomicide offense." Attempted murder, he contended, is a homicide offense.

“A lower court agreed, and dismissed the indictment. But it was reinstated by the Appellate Division. Today the Court of Appeals said that attempted murder is "by definition a nonhomicide offense."

Mr. Latham's lawyer, F. Stanton Ackerman, said he might appeal the case to the United States Supreme Court. If he does so, it would further delay renewed prosecution of Mr. Latham, who is in Attica state prison.

Court Upholds Murder Charge if Death Follows a Lesser Plea

In reviewing SCOTUS decisions on double jeopardy, I found none that addressed this situation directly; however, I believe the Court would find the Delayed Death Exception does not violate the protections afforded by the Constitution. The Fifth Amendment provides that no one shall be put in jeopardy twice for substantially the same crime. I doubt the Court would find that attempted murder and murder are the same.

It may seem unfair to allow a defendant to be charged with murder after he has already been convicted of attempted murder; however it would also be unfair to prohibit the prosecution from pursuing murder charges. Prosecutors must try attempted murder cases as quickly as possible while witnesses are available and memories are fresh. They should not be barred from later charging the defendant with with the crime of murder which no one know would occur when the first case was tried.

I think the only real question would be, would the judge give the defendant credit for any time served towards the punishment of his murder sentence based on the time he did for the previous charge? I think it would come down to whether the judge would feel if in the original trial if the defendant was charged with more than one crime, he'd be given consecutive or concurrent sentences, however, this judge has the benefit of knowing if the defendant turned his life around and became a contributing member of society after serving his first sentence.

He should be given credit for time served, which would add to the mitigation of the double jeopardy issues.

I agree. Unfortunately, since this specific matter has never been litigated I cannot cite any case law to support what we both know is a matter of fundamental fairness. The confusing and sometimes contradictory laws involving double jeopardy fail to establish an authoritative legal theory concerning the applicable punishment in this unique situation. The best I can offer is what I believe to be a valid legal argument based upon a combination of existing laws and common sense.

It is impossible for someone to be guilty of both attempted murder and murder since the crimes are mutually exclusive . In all murders there is an attempt; however, an unsuccessful attempt results in the charge of attempted murder and a successful one results in a charge of murder. When the victim dies immediately, the murderer is never also charged with attempted murder. The attempt – which is inherent in every murder charge – is merely a required element of proof. The same principle should be applied in delayed death cases.

When a person is convicted of attempted murder and the victim later dies as a result of criminal act, the attempted murder becomes a part of the subsequent murder charge. Any time served must therefore be included in the punishment.

Even though I can offer no case law or established legal theory to support my position, I am convinced that every court would include time already served in its final sentencing. If the law did otherwise, then, as Mr. Bumble (a character in Oliver Twist) said, “the law is an arse.”

 

[BoSoxGal]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

 

[The Professor]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

You are incorrect. DOTR obviously has some background in law and you apparently do not. I have a JD (Juris Doctorate or doctorate in law) so let me explain it to you.

It is possible for a person to be convicted of the same crime in both a State and Federal Court. Some states, like Pennsylvania, have a law that provides that anyone convicted or acquitted in a Federal court cannot be tried for the same offense in a State court, but not all states have this provision.

“Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so.

“Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.”

Can I be tried for the same crime in state and federal court?

 

[Correll]

WTF...learn something new everyday


Gamble v. United States | Constitutional Accountability Center

Gamble v. United States
In 2015, a police officer in Mobile, Alabama pulled Terance Martez Gamble over for a broken tail light on his car. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm. The state of Alabama prosecuted Gamble for illegal possession of a firearm, and he served one year in prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm in relation to the same 2015 incident.

Gamble asked the U.S. District Court to dismiss his federal indictment on the ground that it violated his Fifth Amendment protection from Double Jeopardy. The District Court ruled that the dual-sovereignty exception to the Double Jeopardy Clause, which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed. Gamble appealed to the U.S. Court of Appeals for the Eleventh Circuit, and that court affirmed the lower court’s decision. Gamble, who is now serving time in federal prison, asked the Supreme Court to reconsider its past decisions allowing successive prosecutions for the same offense by different sovereigns (i.e., the “dual-sovereignty doctrine”). CAC, along with the Cato Institute, filed a friend-of-the-court brief in support of Gamble, urging the Supreme Court to grant review, and the Court agreed to hear Gamble’s case.

That does seem like bullshit.

 

[Lewdog]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

You are incorrect. DOTR obviously has some background in law and you apparently do not. I have a JD (Juris Doctorate or doctorate in law) so let me explain it to you.

It is possible for a person to be convicted of the same crime in both a State and Federal Court. Some states, like Pennsylvania, have a law that provides that anyone convicted or acquitted in a Federal court cannot be tried for the same offense in a State court, but not all states have this provision.

“Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so.

“Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.”

Can I be tried for the same crime in state and federal court?

Yes that is true but it usually only happens for specific reasons, and isn't the norm. For example the state and federal government may try someone on the same charges, but maybe because the federal government wants to seek the death penalty and the state does not have the death penalty... or because the federal government knows they can introduce evidence into their case that the state will not allow them to. Another example may be because it was a multi-state crime spree in which someone was kidnapped and taken across state lines. It is not common for someone to commit murder and get charged by the state and the federal government just because they can. Let's take for example the latest shooting in PA. PA will charge the man for murder, but they will more than likely never try him, because he is going to be charged with a federal murder crime with the aggravating hate crime tag that puts the use of the death penalty on the table. The only reason the federal government is trying him first is because of the Hate Crime law.

Now something I did not realize until recently, though the 14th Amendment was introduced at the same time as the other Reconstruction Amendments that outlawed slavery and gave Blacks the right to vote... and provided Due Process, technically, the protection of the Bill of Rights to citizens facing state laws was not complete until the 1970's Furman v. Georgia case. It had been implied much longer ago, but not pressed.

 

[miketx]

So he served time for assault and now faces murder for the same crime . Never heard of it before



Missouri man indicted, accused of murdering 20-year-old son after shaking him as baby


Missouri man indicted, accused of murdering 20-year-old son after shaking him as baby

A Missouri father was indicted on murder charges Tuesday after his 20-year-old son — whom he was convicted of assaulting at 6 weeks old — died in April.

Olin Tannery, 39, of Excelsior Springs, pleaded guilty to attempted first-degree assault in August 1999 for shaking and squeezing Dominic Pittsenbarger, his infant son, in 1998, The Kansas City Starreported.


Tannery was sentenced to 13 years in prison and was released in 2007.

Pittsenbarger suffered from rib fractures, a fractured vertebra, subdural bleeding and head injuries consistent with shaken baby syndrome. Doctors predicted he would not survive

Pittsenbarger did survive — albeit with permanent brain damage — and was adopted by Wendell Pittsenbarger, whose last name he took.

He wasn't charged with murder the first time, so no it's not.

 

[DOTR]

As to the OP, as others have said, these are two different crimes, technically, so no double jeopardy.

And this is how every tyrant takes power..."technically".

 

[DOTR]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

Ahh another "technically" Basically "you rubes dont understand the law"....right? But that was always the difference between anglo-saxon culture and the rest...you didnt need to be a lawyer to understand your rights.

 

[DOTR]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

You are incorrect. DOTR obviously has some background in law and you apparently do not. I have a JD (Juris Doctorate or doctorate in law) so let me explain it to you.

It is possible for a person to be convicted of the same crime in both a State and Federal Court. Some states, like Pennsylvania, have a law that provides that anyone convicted or acquitted in a Federal court cannot be tried for the same offense in a State court, but not all states have this provision.

“Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so.

“Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.”

Can I be tried for the same crime in state and federal court?

Bosoxgal is a liberal. She isnt really speaking of the law here but rather reacting in horror that someone would suggest a government power needs to be watched.

 

[DOTR]

We can own guns, we can speak out against our political leaders, we can burn our own flag, the freedom to speak our minds is enshrined in our constitution...yep, sounds like the most controlled people on the planet. I'm sure the citizens of North Korea would feel horribly oppressed to live in the US. Women in Saudi Arabia would wonder where all their choices went were they to move here. Those carefree Syrians would be stifled by the controlling nature of American government.

Article 67 North Korean Constitution

"Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations."
Constitution of North Korea (1972, rev. 1998) - Wikisource, the free online library

Wow look at that..the right to speak their minds is "enshrined" in the North Korean Constitution! They must be as free as can be!

 

[Montrovant]

We can own guns, we can speak out against our political leaders, we can burn our own flag, the freedom to speak our minds is enshrined in our constitution...yep, sounds like the most controlled people on the planet. I'm sure the citizens of North Korea would feel horribly oppressed to live in the US. Women in Saudi Arabia would wonder where all their choices went were they to move here. Those carefree Syrians would be stifled by the controlling nature of American government.

Article 67 North Korean Constitution

"Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations."
Constitution of North Korea (1972, rev. 1998) - Wikisource, the free online library

Wow look at that..the right to speak their minds is "enshrined" in the North Korean Constitution! They must be as free as can be!

Well I guess that proves citizens of the US are more controlled than those of North Korea.

Tell you what, why don't you visit North Korea for a while and give us your impression of the difference in how controlled the citizens of the two nations are?

 

[DOTR]

We can own guns, we can speak out against our political leaders, we can burn our own flag, the freedom to speak our minds is enshrined in our constitution...yep, sounds like the most controlled people on the planet. I'm sure the citizens of North Korea would feel horribly oppressed to live in the US. Women in Saudi Arabia would wonder where all their choices went were they to move here. Those carefree Syrians would be stifled by the controlling nature of American government.

Article 67 North Korean Constitution

"Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations."
Constitution of North Korea (1972, rev. 1998) - Wikisource, the free online library

Wow look at that..the right to speak their minds is "enshrined" in the North Korean Constitution! They must be as free as can be!

Well I guess that proves citizens of the US are more controlled than those of North Korea.

Tell you what, why don't you visit North Korea for a while and give us your impression of the difference in how controlled the citizens of the two nations are?

Should be no difference seeing as how free speech is “enshrined in their constitution”.

 

[BoSoxGal]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

You are incorrect. DOTR obviously has some background in law and you apparently do not. I have a JD (Juris Doctorate or doctorate in law) so let me explain it to you.

It is possible for a person to be convicted of the same crime in both a State and Federal Court. Some states, like Pennsylvania, have a law that provides that anyone convicted or acquitted in a Federal court cannot be tried for the same offense in a State court, but not all states have this provision.

“Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so.

“Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.”

Can I be tried for the same crime in state and federal court?

Unlike you who clearly pretends to be educated in the law, I actually DO have a JD and spent two decades in the criminal justice system as both defense attorney and prosecutor. You are FULL OF SHIT. It is entirely within the accepted and proper use of the law to charge someone once convicted of attempted murder with murder when the victim of the attempted murder succumbs to his wounds inflicted in the original attempt.

You’re a fucking moron to suggest otherwise.

 

[BoSoxGal]

It’s obviously a way around our constitutional double jeopardy protections. I’ve noticed it a lot over the last few years. Federal over reach. We are now subject to two sovereigns and each may prosecute us separately.
Our states should step in and protect us.

No, it’s not. You simply don’t understand the law.

You are incorrect. DOTR obviously has some background in law and you apparently do not. I have a JD (Juris Doctorate or doctorate in law) so let me explain it to you.

It is possible for a person to be convicted of the same crime in both a State and Federal Court. Some states, like Pennsylvania, have a law that provides that anyone convicted or acquitted in a Federal court cannot be tried for the same offense in a State court, but not all states have this provision.

“Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so.

“Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.”

Can I be tried for the same crime in state and federal court?

By the way, most people with actual JDs don’t refer to the degree as a doctorate in law because it’s not the terminal degree in the field so not equivalent to a PhD. This makes me suspect you of being entirety full of shit.

 

[Montrovant]

We can own guns, we can speak out against our political leaders, we can burn our own flag, the freedom to speak our minds is enshrined in our constitution...yep, sounds like the most controlled people on the planet. I'm sure the citizens of North Korea would feel horribly oppressed to live in the US. Women in Saudi Arabia would wonder where all their choices went were they to move here. Those carefree Syrians would be stifled by the controlling nature of American government.

Article 67 North Korean Constitution

"Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations."
Constitution of North Korea (1972, rev. 1998) - Wikisource, the free online library

Wow look at that..the right to speak their minds is "enshrined" in the North Korean Constitution! They must be as free as can be!

Well I guess that proves citizens of the US are more controlled than those of North Korea.

Tell you what, why don't you visit North Korea for a while and give us your impression of the difference in how controlled the citizens of the two nations are?

Should be no difference seeing as how free speech is “enshrined in their constitution”.

Like I said, feel free to visit if you think there's no difference.

I notice you ignored the other examples I gave, not to mention the many examples I didn't mention.

 

[DOTR]

We can own guns, we can speak out against our political leaders, we can burn our own flag, the freedom to speak our minds is enshrined in our constitution...yep, sounds like the most controlled people on the planet. I'm sure the citizens of North Korea would feel horribly oppressed to live in the US. Women in Saudi Arabia would wonder where all their choices went were they to move here. Those carefree Syrians would be stifled by the controlling nature of American government.

Article 67 North Korean Constitution

"Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations."
Constitution of North Korea (1972, rev. 1998) - Wikisource, the free online library

Wow look at that..the right to speak their minds is "enshrined" in the North Korean Constitution! They must be as free as can be!

Well I guess that proves citizens of the US are more controlled than those of North Korea.

Tell you what, why don't you visit North Korea for a while and give us your impression of the difference in how controlled the citizens of the two nations are?

Should be no difference seeing as how free speech is “enshrined in their constitution”.

Like I said, feel free to visit if you think there's no difference.

I notice you ignored the other examples I gave, not to mention the many examples I didn't mention.

Yeah I mostly ignored you. But I did get a kick out of that “enshrined” business.

 

[Montrovant]

We can own guns, we can speak out against our political leaders, we can burn our own flag, the freedom to speak our minds is enshrined in our constitution...yep, sounds like the most controlled people on the planet. I'm sure the citizens of North Korea would feel horribly oppressed to live in the US. Women in Saudi Arabia would wonder where all their choices went were they to move here. Those carefree Syrians would be stifled by the controlling nature of American government.

Article 67 North Korean Constitution

"Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations."
Constitution of North Korea (1972, rev. 1998) - Wikisource, the free online library

Wow look at that..the right to speak their minds is "enshrined" in the North Korean Constitution! They must be as free as can be!

Well I guess that proves citizens of the US are more controlled than those of North Korea.

Tell you what, why don't you visit North Korea for a while and give us your impression of the difference in how controlled the citizens of the two nations are?

Should be no difference seeing as how free speech is “enshrined in their constitution”.

Like I said, feel free to visit if you think there's no difference.

I notice you ignored the other examples I gave, not to mention the many examples I didn't mention.

Yeah I mostly ignored you. But I did get a kick out of that “enshrined” business.

Well if you're fool enough to honestly believe Americans are the most controlled people in the world, you have to ignore a lot of things.

 

[BigTruck]

So he served time for assault and now faces murder for the same crime . Never heard of it before



Missouri man indicted, accused of murdering 20-year-old son after shaking him as baby


Missouri man indicted, accused of murdering 20-year-old son after shaking him as baby

A Missouri father was indicted on murder charges Tuesday after his 20-year-old son — whom he was convicted of assaulting at 6 weeks old — died in April.

Olin Tannery, 39, of Excelsior Springs, pleaded guilty to attempted first-degree assault in August 1999 for shaking and squeezing Dominic Pittsenbarger, his infant son, in 1998, The Kansas City Starreported.


Tannery was sentenced to 13 years in prison and was released in 2007.

Pittsenbarger suffered from rib fractures, a fractured vertebra, subdural bleeding and head injuries consistent with shaken baby syndrome. Doctors predicted he would not survive

Pittsenbarger did survive — albeit with permanent brain damage — and was adopted by Wendell Pittsenbarger, whose last name he took.

While it has the stench of double jeopardy, I understand why this type of thing is allowed.