Debra Reese, 26, didn’t die of natural causes. She was beaten and strangled in her home.
After losing the 2020 election, Trump went on an execution spree, relieving 6 federal death row inmates of their lives before incoming President Biden could get a chance to spare them.
In 2017, Arkansas Gov. Asa Hutchinson, also a Republican, did something similar, shoveling 8 prisoners into his state’s execution chamber in just 11 days. One of them was Ledell Lee, a black man and Debra Reese’s neighbor.
Lee received typical black man’s southern justice: The judge was screwing the prosecutor, Lee’s appeal lawyer was drunk in court, and the state blocked the DNA testing that in April 2021 “found ‘unknown male’ DNA on the murder weapon and bloody clothes found at the scene,” suggesting possibly someone else killed Mrs. Reese. (Read about the case here and here.)
Maybe Lee did it, maybe he didn’t. The DNA testing didn’t rule him out. And if he was guilty, what does it matter now if the legal process was a cluster****? Deal with that by punishing the judge and lawyers. Or so the thinking might go in some quarters.
But let’s set that aside — along with the death penalty debate — and, for purposes of this article, assume as a thought experiment that Arkansas executed the wrong person, and assume the real killer is caught. Since Lee has already been tried, convicted, and executed for Mrs. Reese’s murder, can Mr. X get off by claiming that prosecuting him for her death would be double jeopardy?
First, let’s read the double jeopardy clause. The Fifth Amendment says,
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This doesn’t say two people can’t be convicted of the same crime; it says the same person can’t be tried twice for the same crime. (There are exceptions; for example, a person can be retired after a hung jury, mistrial, or vacation of a conviction because of trial errors.) As explained here, the idea is to keep the State from making “repeated attempts to convict an individual” until it finally scores a guilty verdict.
So it’s pretty clear that if Lee was innocent, and Mrs. Lee’s real killer is caught, the same governor could shovel him into the same execution chamber and dispatch him with the same (or perhaps better) due process.
Somebody made a movie with a slightly different twist. Called “Double Jeopardy” (what else?), its plot involves a husband faking his own death and framing his wife for his murder, for which she goes to prison, and after getting out she kills him. Having already been convicted of murdering him, could she be prosecuted for his real death? Watch this:
But don’t take it as legal advice. That’s a movie, and Tommy Lee Jones is an actor spewing a scriptwriter’s lines, not a real lawyer making an actual legal argument.
This one really is a no-brainer. They’re two different crimes, committed separately and at different times and places, so she can be tried for both of them. The first one resulted in a wrongful conviction, because no crime was committed, but if she shoots him, she’s guilty as stink the second time. (To find out how the scriptwriter wriggled out of legal malpractice, go here.)
And that’s as it should be. Were it otherwise, killers could fake their victims’ deaths, get their convictions thrown out when the victim turns up alive, then have a license to kill them for keeps. No civilized legal system can tolerate an outcome like that.
Photo above: Arkansas death chamber