Need More Blood? Try Dual Sovereignty.

It is a frequent question handled by military lawyers. “Well, isn’t that double jeopardy?”

Most of the time, this extends to administrative actions by military officials, such as nonjudicial punishment followed by administrative separation. In these situations, double jeopardy has nothing to do with administrative processes. They’re only limited by regulation and/or law.

The rest of the time, these questions revolve around misconduct that is punished by both state civilian courts and military courts. What I think in response to these types of questions is horribly flippant. “Good job googling “double jeopardy. Now, google “dual sovereignty.”

While dual sovereignty allows prosecution of one crime in multiple jurisdictions, it doesn’t usually happen. The Department of Justice (DOJ) accepts the policy espoused in Petite v. United States. Military services, not limited by DOJ, have policies that generally discourage multiple prosecutions. However, the door is kept open. For instance, the Navy policy leaves this caveat in the event that a person is convicted by a state court, but unhappiness is felt about the overall result:

Other cases in which the interests of justice and discipline are considered to require further action under the UCMJ (e.g., where conduct leading to trial before a State or foreign court has reflected adversely upon the Naval service or when a particular and unique military interest was not or could not be adequately vindicated in the civilian tribunal).

Occasionally, limits of these types of broad caveats are tested by military prosecutors. That’s happening now in United States v. Greening.

A military prosecutor said Friday that another murder trial is warranted for a sailor – who previously served time in prison for shooting and killing his best friend – because the resulting six-month sentence was too light.

Petty Officer 3rd Class Austin Greening maintains he accidentally shot Petty Officer 3rd Class Kristopher Klubert in the face while they were playing video games. Greening was convicted in civilian court of second-degree murder in 2013, but he won a new trial and accepted a plea deal on a lesser charge.

The day Greening was released from prison in September, the military put him in the brig while he waits to face murder and obstruction of justice charges.

OK, so, what is the standard that necessitates a second trial?

During a the military equivalent of a preliminary hearing Friday, Lt. Adam Partridge said another trial is needed “in the interest of justice.” He also said the victim’s parents were “extraordinarily displeased” with the result of the civilian court process.

The two pronged approach to this one is pretty simple:

A. In the “interest of justice.”

B. Family members are “extraordinary displeased.”

Let’s ask a few questions based on this.

Justice? Which definition of justice? There are roughly 319 million people in the US. Thus, there are 319 million definitions of justice. Which of those are we using?

Extraordinarily displeased? How does displeasure rise to extraordinary levels? Simple displeasure? Aggravated displeasure? How many cases can you think of that result in extraordinary levels of displeasure? Even the harshest punishments leave someone in the audience feeling extraordinarily displeased?

What do we know about those who are extraordinarily displeased?

That reasoning is nonsense, said Greening’s civilian attorney, Greg McCormack. McCormack said Klubert’s parents agreed to the plea deal that could’ve resulted in a maximum sentence of three years in prison for involuntary manslaughter. McCormack said the judge rightfully used his discretion in suspending two and a half years of the three-year sentence.

Perhaps, to accommodate the masses, we should change the rule to triple jeopardy, allowing for substantially interested observers to feel pleasure (or a low level of displeasure) at the result of any given criminal prosecution.