Letting murderers walk

The Feds seem to have lost a racketeering-murder conspiracy case on a technicality. But why can’t the killers (who were New York City detectives at the time) be tried for murder under state law?

It’s appalling that two New York City cops who did hits for the Mob are going to walk free. There seems to be no doubt about their actual guilt, but they were tried on federal racketeering-conspiracy charges covered by a five-year statute of limitations, and the murders were committed in the 1980s and 1990s.

It seems from press accounts that Federal prosecutors made an arrogant blunder by insisting on charging the two detectives under RICO rather than letting state prosecutors charge them with murder, which carries no statute of limitations. Whether he was right or wrong on the law as applied to the facts of the case &#8212 the key question is whether recent drug activity in Las Vegas was part of the same conspiracy that included the murders in Brooklyn one or two decades ago &#8212 I admire Judge Weinstein’s unwillingness to bend the law to produce the socially desirable outcome.

What the New York Times story doesn’t explain is why the murderers can’t now be tried on the state homicide charges. I would have thought that, under the “two sovereigns” doctrine, double jeopardy wouldn’t apply. (The doctrine holds that someone can be tried both Federally and locally for the same act, because the act constitutes two different crimes: one against Federal law, the other against state law. So their technical innocence of racketeering conspiracy under Federal law doesn’t protect them from being tried for homicide by the sovereign State of New York.)

Can some reader learned in the criminal law explicate for us?

Update Of course, those who truly believe that “innocent until proven guilty” ought to be a principle of moral judgment as well as a principle of law, and who have been excoriating those who call the soldiers who committed the Haditha massacre “murderers” and the Republican leadership in Congress “crooks” because they haven’t been tried yet, will think me wrong to assert that Eppolito and Caracappa are factually guilty of crimes of which they are still, and may always be, legally innocent. Or at least they ought to think so, for consistency’s sake. Of course, if they said so, everyone would, properly, laugh at them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

10 thoughts on “Letting murderers walk”

  1. New York statute abrogates its dual sovereignty for double-jeopardy purposes. So if they've gotten a final disposition for the federal charges, New York can't retry them on state ones.

  2. Well, kudos to New York for not taking part in this deliberate circumvention of the double jeopardy clause. The Constitution establishes two sovereigns, alright… Two sovereigns whose powers would not overlap sufficiently to create double jeopardy, if the Constitution's limits on federal power were actually being upheld.
    The only thing that troubles me about this is that it never should have been a federal case in the first place.

  3. What do you mean, innocent until proven guilty? They WERE proven guilty. Judge Weinstein did not hold that they are innocent; he held that even though they are guilty they cannot be punished.

  4. Mark, As you say, there is no federal (U.S. Const., 5th Amendment) double jeopardy bar to a NY state murder prosecution (or eight). The question is whether NY state constitutional or statutory law bars prosecution after a federal prosecution for racketeering which was expressly predicated upon those state murders, but which failed not for a reason touching on guilt or innocence, but rather for an important but non-merits reason (the sort of thing that nonlawyers call "a technicality"). A quick look at NY's exceptions-and-cross-reference-riddled statute tells me that the answer to this won't be simple for a non-NY crim law expert to tell you. (I can't, just at a glance, despite being a PA and federal crim law appellate practitioner [and former law prof] for nearly 30 years.) You need a New York expert to try to answer this.
    Meanwhile, don't expect these guys to "walk free." The U.S. Attorney's Office has a right to appeal this decision, and they are unlikely to get bail in the meanwhile. If local authorities lodge charges, it will mean at best a change of jails. As for the presumption of innocence, don't fret. They were proven guilty beyond a reasonable doubt to the satisfaction of a unanimous jury, at a trial where they were represented by top-notch counsel, before one of our most brilliant (ex-Columbia U law prof, treatise-author), experienced (many decades), and even-handed federal judges.

  5. Peter: what am I, chopped liver?
    The statute is CPL 40.20. Section (f) provides a limited exception for retrying someone for whom double jeopardy attached in another jurisdiction, and that exception doesn't apply here.
    New York takes the civil liberties of its citizens seriously. Were that all other states did.
    CPL 40.20
    1. A person may not be twice prosecuted for the same offense.
    2. A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:
    (a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or
    (b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil; or
    (c) One of such offenses consists of criminal possession of contraband matter and the other offense is one involving the use of such contraband matter, other than a sale thereof; or
    (d) One of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other non-homicide offense; or
    (e) Each offense involves death, injury, loss or other consequence to a different victim; or
    (f) One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state; or
    (g) The present prosecution is for a consummated result offense, as defined in subdivision three of section 20.10, which occurred in this state and the offense was the result of a conspiracy, facilitation or solicitation prosecuted in another state.
    (h) One of such offenses is enterprise corruption in violation of section 460.20 of the penal law, racketeering in violation of federal law or any comparable offense pursuant to the law of another state and a separate or subsequent prosecution is not barred by section 40.50 of this article.

  6. Phil: Maybe I'm the foie gras here, but I don't see how you find this easy. Under subsection (f), doesn't Judge Weinstein's opinion find the evidence of RICO insufficient solely to prove that the offense occurred within 5 years of the filing of the federal indictment, which is not an element required by the NY murder statute? If so, then doesn't sub (f) green-light a reprosecution in NY? And what about sub-(h), which seems expressly to authorize second prosecutions in NY if the prior prosecution for the same acts was brought under the federal RICO law (as here) as long as "section 40.50" isn't violated. What's that refer to? Sorry I can't see what you think is so clear about this.

  7. I am so glad to hear that NY takes the civil liberties of their citizens seriously. With all those black guys being gunned down by police, I was beginning to wonder.

  8. NY actually has a low incidence of police shootings for its size. If you want trigger-happy cops, I suggest you visit San Diego.

  9. Although I didn't check the cross reference, it seems to me that the prosecution of a homicide would require the establishment of different elements from the prosecution of a RICO violation, although perhaps it's an open question whether proof of the predicate acts would be construed as a prosecution of those predicate acts, if the homicide was premised as a RICO predicate act (I believe, the S. Ct. has very clearly indicated that a predicate act that predates the applicable limitations period cannot be used as the basis of a RICO conspiracy). Also, there's the distinction between conspiracy and the completed offense.
    Anyway, not an expert on New York law but it seems like a couple of the exceptions could arguably apply.

  10. foo,
    San Diego? Gimme a break — Bakersfield, where the Kern County Sheriff's Department defines gun control as hitting the X ring …

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