As I mentioned in my CNN piece on Friday, various voices are calling for the federal prosecution of George Zimmerman following his acquittal on state-court charges [commentary about that: Jonathan Adler, Jacob Sullum, Steve Chapman, Eugene Volokh; see also the update to my Friday post regarding the possibility of “hate crime” charges] In a letter to Attorney General Eric Holder, the American Civil Liberties Union (ACLU) takes the view that a federal prosecution would be improper double jeopardy, implicitly rebuking its own executive director, Anthony Romero, who had suggested otherwise in early comments to the press following the verdict [TalkLeft (“the organization came to its senses”), Politico, text of letter from Laura Murphy, director of ACLU Washington Office, PDF; see also David Bernstein]
As I noted in my CNN piece, the exception for “dual sovereignty” prosecutions arose in a 1959 Supreme Court case called Bartkus v. Illinois, decided 5-4, in which the dissenters were the four liberals: Earl Warren, William Douglas, Hugo Black and William Brennan. Here are a few things that Hugo Black had to say in his dissent, joined by Douglas and Warren: “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization,” one that did not disappear “even in the Dark Ages.” And “retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.” In short, “double prosecutions for the same offense” are “contrary to the spirit of our free country.” (& welcome Instapundit, InsiderOnline readers)