J. Barry on Actual Innocence and the Double Jeopardy Clause

I came across a great article by Professor Jordan Barry of University of San Diego School of Law on prosecution of the exonerated.

Jordan Barry, Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause, 64 Stanford Law Review 535 (March, 2012). It is obtainable on SSRN.

Here is the abstract:

In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.

2 responses to “J. Barry on Actual Innocence and the Double Jeopardy Clause

  1. Docile Jim Brady – Columbus OH 43209

    STOP the “permission”.

  2. The David Camm case comes to mind while reading this. His first conviction was overturned; prosecutors tried him again. Second conviction overturned; prosecutors planning to try him a 3rd time! He’s still sitting in prison awaiting his 3rd trial. This time a special prosecutor has been assigned, and they have NO evidence aside from very questionable and unconvincing blood spatter (8 tiny drops) not even consistent with spatter one would expect to see from a shooting AND he has an airtight alibi. Thanks for posting this.

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