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Though the Constitution prohibits "any person" from being 'twice put in jeopardy of life or limb" for the same offence-commonly known as double jeopardy-the Supreme Court has read that clause to be essentially meaningless. Since the state and federal governments are different sovereigns, both can prosecute a suspect separately for the "same offense" without violating the constitutional prohibition on successive prosecutions.

Reno's Innocent Mistake

Still the law finds such judicial do-overs unseemly As Supreme Court Justice John McLean said in 1847, "Nothing can be more repugnant than two punishments for the same act." (Fox v. Ohio, 5 How. 410)

The Department of Justice has fairly stringent restrictions on when a successive federal prosecution can be brought for "the same acts or transactions" already handled in state court. The Justice Department must grant a "Petite waiver," which requires a finding that the case involves "a substantial federal interest," that the state prosecution left that interest "unvindicated," and that the case is strong enough to win a conviction.

Fewer than 100 such separate federal prosecutions for the same conduct are brought every year in the entire country.

Despite the cop-haters' insistence that their threat to throw a collective tantrum has created just such a "federal interest," there is no more federal interest here than in any murder trial. Even if we assume a generalized federal interest in prosecuting murder cases, this one was prosecuted, and fairly, so no such interest could be said to have gone "unvindicated." The Bronx DA who prosecuted the cops could not exactly be accused of throwing the case: He not only indicted the cops for murder, but compared Diallo's shooting to a "drive-by shooting."

Finally, one (racially diverse) jury has already concluded that these cops made a mistake, and were not acting intentionally. A second prosecution, which would necessarily also have to establish that it wasn't a mistake, can hardly be described as a "strong" case.

On the off-chance that anyone cares about the law, the federal government would be bringing suit under Section 242 of the Federal Criminal Code for "Deprivation of rights under color of law." That requires proving that the cops willfully deprived Amadou Diallo of his constitutional rights because of his color or race. Federal prosecutors would not only have to disprove that the cops made a mistake-something the state prosecutors could not do--but also prove that the cops shot Diallo because of his race.

The government will have to argue that the cops intentionally violated Diallo's constitutional rights either by: 1) intentionally depriving Diallo of his Due Process rights under the 5th Amendment; or 2) intentionally depriving Diallo of his right to be free from unreasonable searches and seizures under the 4th Amendment.

The first theory would require the government to prove that these cops went out and intentionally killed a black man because of his race (the Manson Family on the NYPD theory). The alternative argument would require the government to prove that the firing of 41 bullets was unreasonable and excessive (the Hollywood conception of firearms theory).