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John Whitehead's Commentary

Double Jeopardy Does Not Allow You to Commit Murder

John Whitehead
"No person shall be subject for the same offense to be twice put in jeopardy of life and limb."

The Fifth Amendment to the United States Constitution

Libby Parsons lives an idyllic life. Her husband Nick, a wealthy businessman, showers her with love and affection. They have a bright, four-year-old son. Life could not be better.

Then Nick buys Libby, who is passionate about sailing, her dream sailboat. However, on a weekend boat trip with Nick, Libby wakes up covered in blood. Panic-stricken, Libby follows bloodstained footsteps to the deck. There is no sign of her husband, but there is a knife. As soon as she picks it up, a Coast Guard boat arrives. Does the plot sound familiar?

Libby becomes the prime suspect. Although a body cannot be found and Libby proclaims her innocence, she is convicted of murdering her husband and sent to prison. While talking to her son on the telephone, Libby learns that Nick is still alive. Not only that, he is living with the young woman to whom Libby had entrusted her son.

Libby realizes that she was framed. It's the old story: husband takes out huge insurance policy, fakes death, wife is falsely convicted, son collects insurance policy, husband and lover live happily ever after. But there's a twist to the story. While in prison, Libby comes in contact with a former lawyer (serving time for murder) who informs her that she cannot be convicted of the same crime twice. Therefore, the lawyer informs her, Libby can now carry out the crime for which she was convicted; namely, Nick's murder. Incredulously, after serving only six years of her sentence, Libby is paroled and begins her quest for vengeance.

Thus goes the premise of Double Jeopardy, last weekend's top grossing movie starring Ashley Judd as Libby and Tommy Lee Jones as her parole officer. Following a series of chaotic scenes, Libby finally finds Nick and threatens, while pointing a gun at him, "I could shoot you, and they can't touch me." Because of the defense of double jeopardy, Libby declares, she cannot be convicted twice for killing Nick. Her parole officer, a former law professor, confirms this legal analysis. But a false interpretation it is. An examination of the Fifth Amendment will explain why.

Prosecutors must plead their cases in very specific terms. They must note the time, place and method of a particular crime. This is done for two reasons. First, the Fifth Amendment protects the defendant from being prosecuted again for the same crime. This is known as "double jeopardy."

The second reason is to protect the prosecutor. For example, imagine a prosecutor bringing a person into court for burglary. If that same person had been tried for burglary last week, he might claim that the law against double jeopardy protects him from being tried in this second instance. However, if the prosecutor shows that last week's burglary took place in Virginia on a Tuesday night and this week's burglary took place in Maryland on a Wednesday night, the prosecutor can prove that double jeopardy doesn't apply--the defendant is being tried for different burglaries.

How does this apply to the movie Double Jeopardy? When Libby was tried for murdering her husband the first time, the prosecutor stated a specific time and place for the crime. If she had actually killed her husband later in the movie, it would've been in a different city and time, making it a different crime. Therefore, double jeopardy would not apply, and she would be accused of murder. Thus, David Weisberg and Douglas S. Cook, writers of Double Jeopardy, not only penned a mediocre screenplay but would flunk a first-year law exam as well.

Libby's true remedy would be to bring proof to the proper authorities that her husband is still alive. The court would then nullify her original conviction and bring charges against her husband.

British playwright Oscar Wilde once said that life imitates art far more than art imitates life. Anyone who believes it is possible to commit a crime and claim the defense of double jeopardy will be sadly mistaken. In this case, imitating art could put you on death row.


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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