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triceretops
03-21-2007, 11:59 PM
In my story, the antag sets up another person for their murder. The innocent person is convicted and a death sentence is carried out. The wrong person got smoked. So,the antag actually ends up killing two people.

So, years later, somebody finds irrefutable evidence showing who the real murderer was (the antag), and wants to see the real killer put away.

But since the trial never convicted the real killer (he was cleared), and it's been 24 years after-the-fact, can a new trial be reopened to prosecute the antag?

Or is this called double jeapordy and the antag is bound to get off for this crime?

Any help or opinions appreciated.

Tri

Cathy C
03-22-2007, 12:04 AM
There's no statutory timeline for murder. Prosecution can happen anytime, no matter how long it's been since the original crime.

"Double Jeopardy" relates not to the crime, but to the ACCUSED. Here's a good definition (http://www.lectlaw.com/def/d075.htm). For example, O.J. Simpson can never again be tried for the murder of his ex-wife, no matter how good of proof someone eventually found. He could even confess now, and it couldn't be reopened.

But a DIFFERENT person can absolutely be tried for the same murder. It would be up to the D.A. as to how to proceed with the framing of the other person. They might use it during sentencing of the murder if the jury convicts. Or, s/he might have a separate trial for that aspect.

Hope that helps! :)

JD65
03-22-2007, 12:07 AM
The Fifth Amendment protection against double jeopardy states that no person shall be subject to prosecution twice for the same offense (I'm paraphrasing here). If I followed your scenario correctly, your character was not the one originally on trial, it was the "innocent" person who was wrongfully convicted and put to death.

As such, charges are free to be brought against your character for the underlying crime (original murder) as well as the second murder of the "innocent" character.

In virtually every jurisdiction, there is no statute of limitations on the crime of murder, so the two decade time span in your case is not a legal issue.

Good luck.

triceretops
03-22-2007, 12:09 AM
Thanks, Cathy, that makes sense. I understand about the no time limit on a murder case. And this antag was never suspected or taken to trial for the crime, other than as an impartial witness. So I guess, if enough really solid evidence was presented, the DA could reopen the case and try to nail the real killer.

But what an embarassment to the procecutors and original jury, eh!??!!

Tri

Cathy C
03-22-2007, 12:12 AM
It's not a perfect system, sadly. Yeah, the original jurors will have their own soul-searching, as often happens in these kind of cases. But it's still better than a lot of other methods of finding the truth. :)

Histry Nerd
03-22-2007, 12:13 AM
Tri -

Depends on whether the antagonist was tried. If he was tried and found not guilty, then it would be double jeopardy. If he never stood trial, there is no double jeopardy. Even if he was charged but later released without trial.

That's how I understand it. One of our lawyers will probably be along presently.

HN

triceretops
03-22-2007, 12:15 AM
Thanks, JD. that's a comfort. So I'm on the right track. This cretin could take the rap for two deaths, only I don't know what you would call the second fatality. She was innocent and put to death by the state. What kind of death is that called? That is not a homicide per se, is it?

What is the legal term for that second death? Or would you call it an unfortunate accident? I would imagine the relatives of the executed innocent victim might even file a law suit. Who would they sue, the DA's office? The correctional facility?

Wrongful death? Maybe that's it.

Tri

JD65
03-22-2007, 12:18 AM
It'd still be murder for the "innocent" being killed - unfortunately, his murder weapon was the judicial system.

"Wrongful death" would be the generic label attached to a civil suit against somebody for money damages for the death.

Jamesaritchie
03-22-2007, 12:37 AM
While a person can't be tried twice for the same offense, assuming he was found not guilty, he can be tried, and convicted, of a related crime. Many a person has been found innocent of murder, but later convicted of violating the murdered person's civil rights, or of kidnapping the victim, etc.

New evidence can mean a new trial, but one that charges the person with a different aspect of what is essentially the same crime.

Prosecutors sometimes intentionally leave the door open for this by limiting the number of charges against a person in a murder case.

elgato
03-22-2007, 07:40 PM
It'd still be murder for the "innocent" being killed - unfortunately, his murder weapon was the judicial system.



Which is why I oppose the death penalty!

Vanatru
03-22-2007, 08:15 PM
Which is why I oppose the death penalty!

Great, I'll submit the paperwork for your medal.

benbradley
03-22-2007, 09:02 PM
Often a crime such as murder violates several laws. All states have laws against murder, and so does the US federal government. IIRC, Timothy McVeigh was convicted and executed through federal law by the federal government.

If someone is brought to trial for murder by a state and is found innocent, he could still be brought to trial by the federal government for the same crime, because this time he will be tried for breaking a different law, the FEDERAL law against murder. A person can break several laws in several jurisdictions (local, state and federal) by one act, and be tried separately for the breaking of each law.

jclarkdawe
03-22-2007, 11:44 PM
But since the trial never convicted the real killer (he was cleared), and it's been 24 years after-the-fact, can a new trial be reopened to prosecute the antag?

Tri

There is a problem here, if you want one. Rather than double jeopardy, but the length of time involved. Witness memories have gone downhill, witnesses may have died. This is the defense that would probably be used, with varying degrees of success.

Jim Clark-Dawe

pconsidine
03-23-2007, 01:05 AM
Well, and there's always the fact that having convicted and executed someone else for the crime certainly introduces and element of "reasonable doubt." ;)

KCH
03-23-2007, 01:50 AM
...his murder weapon was the judicial system.




Oooh! I can just hear the voiceover on the trailer for the movie.

triceretops
03-23-2007, 02:01 AM
...his murder weapon was the judicial system.

Oh, I like that. I'm going to use it. Your check's in the mail.

tri

Birol
03-23-2007, 02:16 AM
Thanks, JD. that's a comfort. So I'm on the right track. This cretin could take the rap for two deaths, only I don't know what you would call the second fatality. She was innocent and put to death by the state. What kind of death is that called? That is not a homicide per se, is it?

Tri, I don't think the cretin could take the rap for the state-sactioned execution. That was a failure on the part of the judicial system, not a homicide. While he might have framed her for the crime, it is unlikely a prosecutor would charge him with her murder, since he is not responsible for convicting her, determining what the sentence was (the judge could've given her a life sentence rather than the death penalty), or carrying it out. However, a prosecutor would probably (IMO), use the fact that he had framed another person as proof of premeditation and play up the fact that an innocent life was sacrificed during the trial in order to garner the sympathy of the jury.

triceretops
03-23-2007, 06:17 AM
Thanks, Lori. That makes sense. In this case he was indirectly responsible for the second death, but could only be tried on the first. Perhaps a civil suite could be brought against him for framing that person.

Tri

Vanatru
03-23-2007, 06:20 AM
Thanks, Lori. That makes sense. In this case he was indirectly responsible for the second death, but could only be tried on the first. Perhaps a civil suite could be brought against him for framing that person.

Tri

That..........or............on a dark night. Joe Scumbag is walking from his car to his house.

From out of the shadows and darkness walks vengance with a ballbat. Whack whack whack. Joe Scumbag is on the ground wondering why, oh why this is happening.

A voice, steady and chilly hisses out the answer. "Payback, you Son-of-a-bitch." Whack whack whack

ideagirl
03-28-2007, 08:03 AM
It sounds like you're saying A killed someone and set up B to take the rap, and then B was tried and convicted of the murder. If that is what happened, there's no double jeopardy issue: double jeopardy is about trying the SAME DEFENDANT twice for the same crime.

If, for example, A had been tried for the crime and found not guilty, and then years later new evidence surfaced that showed he had done it, A could not be tried again for that crime. (But note that A could still be sued for wrongful death... that's what happened to OJ Simpson. Double jeopardy just means you can't be tried in criminal court twice for the same crime: the state only gets one chance to prosecute you. However, the victim's family may also get one chance to sue you for it, so you could be in court twice for that one crime--but only in the criminal trial would you be at risk of going to jail; at the civil trial, all that could happen is that you'd be ordered to pay the family money, as OJ Simpson was ordered to do.)

ideagirl
03-28-2007, 08:09 AM
What is the legal term for that second death? Or would you call it an unfortunate accident? I would imagine the relatives of the executed innocent victim might even file a law suit. Who would they sue, the DA's office? The correctional facility?

If there were a legal term it'd be wrongful death, but there wouldn't be a legal term because there wouldn't be a lawsuit. There are laws in place to shield public officials from being sued for acts they performed on the job in good faith, and it's extremely difficult to sue the state itself (read up on the 11th amendment for why). So, unless the family had a malicious prosecution claim (i.e., unless they could show that the DA's office, etc., was NOT acting in good faith--like if the DA at the time had a personal vendetta against the defendant and cooked up the charges against her), there wouldn't be anything to sue about. It doesn't sound like your story involves any bad faith at the DA's office or anywhere else. And they probably also couldn't sue the real perp, because the only way he could've prevented her from being executed would be to confess himself, and there is no duty to confess: the 5th amendment protects people from that--there's no legal duty to incriminate yourself, so you almost certainly can't be sued for failing to confess.