Federal Dual and Successive Prosecution – “Petite Policy” – Growing Concern for Florida Defense Lawyers

The U.S. Constitution protects those accused of criminal acts from being tried repeatedly for the same crimes.  You may have heard this before referred to as the “Double Jeopardy” clause in the Fifth Amendment to the U.S. Constitution.gavel1

However, there is a controversial exception to this rule that is sometimes referred to as “dual sovereignty” or “dual and successive prosecution.”  Offices of the U.S. Attorneys refer to this policy in their own manual, under section 9-2.031, as the “Petite Policy.”  The name derives from the 1960 U.S. Supreme Court decision in Petite v. U.S.  Essentially, the policy allows the federal government to initiate a separate, federal prosecution of the same acts for which defendant is being charged or has been acquitted in state-level courts.  There is actually no constitutional bar for this action because, the reasoning goes, prosecution by different sovereigns are not considered prosecutions for the same offense under the double jeopardy clause of the U.S. Constitution.

The policy does stipulate that the U.S. Justice Department should avoid a federal prosecution for the same actions from which a state-level prosecution arose, unless there is a “compelling federal interest.”  But that interpretation is left open to federal prosecutors, who have long held a reputation for being overzealous.

Our Miami criminal defense lawyers are keenly aware of the fact that these dual and successive prosecutions may jeopardize the constitutional rights of defendants who have already been cleared by a jury of their peers.  Further, there is a serious concern regarding “Selective Prosecution.”  That is, prosecutors may be more selectively choosing to pursue this dual and successive prosecution option against certain racial minorities or disadvantaged groups.

Perhaps the most recent high-profile case in which the Petite Policy was raised was that of the George Zimmerman case.  Zimmerman, the neighborhood watch volunteer who shot and killed black teenager Trayvon Martin in a confrontation as the unarmed teen walked to his father’s nearby home, is not necessarily a sympathetic figure.  However, he was tried by his peers and acquitted.  It was only after he was found not guilty in a Florida state court that U.S. Department of Justice began weighing the possibility of a successive prosecution against Zimmerman, who was allegedly motivated by racial hatred.

As then U.S. Attorney General Eric Holder noted at the time, protocols of the Petite Policy aren’t legally binding, and they could be adjusted at any time.  That’s concerning for defense lawyers working to fend off criminal prosecution in both state and federal court.  Although the federal government generally does not choose to pursue such cases, it does allow for exceptions in “extraordinary circumstances.”

But what exactly does that mean?

The policy indicates there has to be a substantial, unvindicated federal interest.  In other words, federal prosecutors have to believe there was a state-level breakdown of justice or some independent need to prosecute a defendant in federal court to meet some special federal interest.  Examples of when the Petite Policy would be invoked might include a trial wherein a jury clearly disregarded evidence or it was apparent that corruption or intimidation were factors which led to a defendant being found not guilty.  It could also be met in cases where the previous prosecution was “manifestly inadequate” in a case that has national priority and where the violation involves deeply egregious conduct (i.e., loss of life, severe physical harm, severe economic harm or impairment of a government agency).

In the Zimmerman case, the U.S. Department of Justice officials decided that the case did not meet the standard for a subsequent federal prosecution based on the Petite policy.  They then dropped the issue.  Still, we do know other cases are being initiated by federal authorities in Florida under the “dual and successive prosecution” policy.  These cases are not receiving even a fraction of the attention of the Zimmerman ordeal.  It is our goal to ensure the constitutional rights of criminal defendants are vehemently protected and that they are adequately defended against actions of overzealous prosecutors at both the state and federal level.  Everyone accused of a crime needs to be aware of the risk they face of being prosecuted in both the state and federal courts.  As a former prosecutor and Board Certified Specialist in Criminal Trial Law, I guide my clients through their cases and make sure that they are aware of the risks they face as we aggressively defend their case.

Contact the Miami criminal defense lawyers at Jacobs Keeley at (305) 358-7991 for a confidential consultation on your pending criminal matter.

Additional Resources:

DOJ’s Own Rules Set High Bar for Zimmerman Charges, July 15, 2013, By Jacob Gershman, The Wall Street Journal

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