I studied Constitutional Law in college and later again in a few academy courses in both the Border Patrol and Customs academies and thus learned about a person having a right not to be subjected to double jeopardy for the same crime. In it's simplest form double jeopardy would be a case in which a defendant was found not guilty and then arrested and prosecuted again, for the same charge, if new evidence was found that indicated his guilt. The state simply cannot do it and I agree, it should not be done because it would result in persecutions of too many innocent people against whom the state decided to hold a crusading vendetta, for whatever reasons - such a political considerations, against the accused.
I think there is a case now in which the claim might be raised by the defense that the state is subjecting the accused, in my opinion a heinous criminal, to double jeopardy. Although I certainly am no expert on this aspect of the law, I would think that if someone is convicted of a crime and sentenced, then once he has completed the sentence, it might possibly be seen as double jeopardy to sentence him to a longer term for the same crime. I hope it is not the case though - at least in this particular instance.
This case is more something like someone being convicted and sentenced to 30 years in jail, then getting out early for good behavior but having to abide by parole regulations which if violated would send him right back to jail to complete the original sentence except that the man has apparently not violated his parole and yet the state is seeking to sentence him to the longer term. What they are saying is that the sentence given was illegal on the part of the sentencing judge.
Is it double jeopardy if it was the judge who erred illegally in arriving at the length of time served relative to the sentencing? I hope not because in this case, a vile disgusting pedophile of a rapist raped, repeatedly, a 14 year old girl (made even more disgusting by the fact he was a teacher, reportedly her teacher). It may not be double jeopardy because the actual sentence he received was 15 years and upon sentencing the judge suspended all but 31 days of his sentence. Why the suspension of most of the sentence? The judge thought that it was fitting, proper and legally lenient. That was apparently, in part, based on the judge's belief that the victim was 'older than her chronological age'. I find it difficult to believe tat the judge was lenient to the defendant because the girl looked more mature than her years, especially when the rapist knew the girl and was reportedly her teacher.
My guess would be that the defense will say that any such imposition of a further sentence, without a parole violation, would be double jeopardy although right now, the defense is not saying anything publically. I really truly hope that the court does not decide such, as the actual sentence was to 15 years imprisonment as I understand and it is going to be argued that the judge's leniency was illegal. I especially there will not be a finding of double jeopardy and that the criminal will have to endure the complete 15 years behind bars if only in as much as the state should honor the memory of the 14 year old girl, the victim who was evidently forgotten or ignored by the sentencing judge. I say in her memory because she committed suicide before the trial.
Of course, there was a public outcry and the judge tried to resentence the man; however, the prosecutors went to Montana's supreme court to stop the judge from resentencing the man and I would guess because it may have been a double jeopardy issue had he done so or because it would have otherwise been illegal for him to change the sentence. The state is appealing the original sentencing saying it was illegal and I hope they win and that the rapist is sentenced to at least the 10 years they are trying to get him to serve. If the state loses its appeal, but somehow the judge is determined to have acted and found guilty of a crime related to the sentencing, I think it might be fitting to have the judge serve the full sentence that could have been given to the rapist. If the judge is found to have acted within the law, then I think he should resign because there is no way that I can see it as him having carried out his duties morally, ethically and within the spirit of the law.
All the best,
GB
Source: http://www.foxnews.com/us/2013/11/30/montana-appeals-teacher-30-day-rape-sentence/
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