Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-006-02 Last-Modified: 1997/01/23 Source: Department of Justice Canada Footnotes ------------- 178. This brief summary of the Rodney King beating is taken primarily from The Guide to American Law: Supplement 1992 (St. Paul, MN: West, 1992) pp. 286-289 and from the description of the beating given by G. P. Alpert, W. C. Smith, and D. Watters, "Law Enforcement: Implications of the Rodney King Beating" (1992) 28 Crim. L. Bull. p. 469. 179. The Guide to American Law: Supplement 1992, supra, footnote 1, p. 286. 180. Powell v. Superior Court (People), 283 Cal. Rptr. p. 777 (Cal. App. 2 Dist. 1991). 181. Police officers Sgt. Stacey Koon, Timothy Wind and Theodore Briseno were acquitted on all counts. However, the jury failed to reach a verdict on the charge that Officer Laurence Powell had used unnecessary force under colour of authority. For a summary of this trial, and its aftermath, see The Guide to American Law: Supplement 1993 (St. Paul, MN: West, 1993) pp. 291-297. 182. See, e.g., D. Margolick, "Switching Case to White Suburb May Have Decided Outcome", The New York Times, Friday, May 1, 1992, p. A20. For a criticism of the judge's decision to change venue in the Rodney King case, an examination of recent state proposals for changes to the law in response to the King case for obtaining a change of venue, and an argument for a judge's taking race into account in deciding whether to make a change of venue application, see Note, "Out of the Frying Pan or Into the Fire? Race and Choice of Venue after Rodney King" (1993) 106 Harv. L. Rev. p. 705. 183. The details of the charges are outlined in a news release, 92-201, dated August 5, 1992, entitled "Four Indicted by Federal Government for Civil Rights Law Violations in King Case", issued by the United States Department of Justice. 184. See pp. 36-38 of this paper. 185. S, Mydans, "2 of 4 Officers Found Guilty in Los Angeles Beating", The New York Times, Sunday, April 18, 1993, at 1, 32; S. Mydans, "Sympathetic Judge Gives Officers 2 1/2 Years in Rodney King Beating", The New York Times, Thursday, August 5, 1993, pp. A1, A16. 186. See S. Mydans, "Rodney King Testifies on Beating: 'I Was Just Trying to Stay Alive"', The New York Times, Wednesday, March 10, 1993, p. A1; S. Mydans, "Rodney King Unsure on Beating Details", The New York Times, Thursday, March 11, 1993, p. A18. 187. For example, in Bartkus v. Illinois, 359 U.S. p. 121 (1959), the accused originally had been prosecuted under federal law for robbery of a federally insured bank, but had been acquitted. The accused was later tried for robbery under the penal law of the State of Illinois. Although the federal authorities and state prosecutorial authorities cooperated with each other, the court concluded that the state prosecution was not a sham and a cover for the federal prosecution, and applied the dual sovereignty doctrine to uphold the person's conviction on the state prosecution. See also Abbate v. United States, 359 U.S. p. 187 (1959). 188. For example, the Justice Department has a "Petite Policy", by which the federal government will not prosecute a defendant who has been previously prosecuted in a state court for the same conduct unless "compelling interests" support a second prosecution. See M. A. Dawson, "Popular Sovereignty, Double Jeopardy, and the Dual Sovereignty Doctrine" (1992) 102 Yale L.J. pp. 293-294 for a discussion of this policy. Dawson, p. 294, describes the state statutes limiting the dual sovereignty doctrine as follows: Twenty-three states have adopted statutes limiting the dual sovereignty doctrine. However, the limitation effected by these statutes is even less complete than that effected by the Petite Policy. The Petite Policy limits federal prosecution of offenses arising out of the same conduct previously subject to state prosecutions. Thirteen states impose a similar limitation, limiting state prosecution of offenses arising out of the same conduct previously subject to federal prosecution. Another seven states limiting the dual sovereignty doctrine, however, do so by limiting reprosecution for the same offense_not for the same conduct. As in the case of federal prosecutions following state prosecutions, state prosecutions following federal prosecutions for offenses arising out of the same conduct are brought routinely. 189. N. A. Lewis, "A.C.L.U. Opposes Second Trial for Same Offense", The New York Times, Monday, April 5, 1993, p. A10. Policy # 238a of the A.C.L.U., on file with the author, entitled "Double Jeopardy", states at p. 299b that there should be no exception to double jeopardy principles simply because the same offence may be prosecuted by two different sovereigns. The policy goes on to state, at footnote 3 of p. 299b, that "there are many tools at the disposal of Congress or federal prosecutors to prevent the states from eviscerating the power of the federal government to vindicate important interests, such as those embodied in the civil rights laws. These might include preempting state prosecutions, creating a federal removal statute for situations where federal prosecution is deemed desirable, or prosecuting or enhancing penalties for activities designed to impede federal prosecution." The above article by N. A. Lewis points out the division that occurred within the A.C.L.U. on this policy in the wake of the Rodney King beating. After the acquittal of the police officers involved in the Rodney King beating on April 29, 1992, the Southern California chapter of the A.C.L.U. urged the Justice Department to try the officers on federal civil rights charges. The A.C.L.U.'s strict policy opposing double jeopardy was suspended in June, 1992 to consider the impact of the policy on the officers' case. On April 4, 1993, in a close vote, the national board of the A.C.L.U. enacted a resolution opposing any exceptions to the American Constitution's prohibition against double jeopardy. However, all ten of the black members who were present voted to allow for second trials on civil rights grounds after acquittal on local charges. 190. The issue would appear to be whether or not the two charges are different in nature. See R. v. Van Rassel,  1 S.C.R. 225; (1990), 53 C.C.C. (3d) 353. 191. R. v. B. (1986) 29 C.C.C. (3d) 365 (Ont. C.A.). 192. Kienapple v. The Queen,  I S.C.R. 729; (1974), 15 C.C.C.(2d) 524. There, the accused had been charged with separate counts in one indictment of the then crimes of rape and unlawful sexual intercourse with a female under 14 years of age. At trial, the accused had been convicted of both counts. The Supreme Court of Canada held that, although the crime of unlawful sexual intercourse was not included in the crime of rape, nonetheless the doctrine of _res judicata_ applied, which precluded multiple convictions for the same delict even though the same matter was the basis of two separate offences. 193. R. v. Prince,  2 S.C.R. 480; (1986), 30 C.C.C. (3d) 35. 194. In Prince, ibid., the Court ruled that the rule against multiple convictions did not preclude a subsequent prosecution and conviction for manslaughter arising out of the death of an infant prematurely born when the accused had previously been tried for attempted murder of, and convicted of causing bodily harm to, the infant's mother. In another case, Wigglesworth v. The Queen,  2 S.C.R. 541; (1987), 37 C.C.C. (3d) 385, the Supreme Court of Canada held that a police officer who had been found guilty of a major service offence under the Royal Canadian Mounted Police Act arising out of an unlawful assault upon a prisoner could also be prosecuted and convicted of the crime of assault without contravening the double jeopardy guarantee of subsection 11(h) of the Charter. The majority of the court held that the offences were quite different so as not to attract the rule against multiple convictions. One offence -- the major service offence -- was an internal disciplinary matter for which the accused was accountable to his profession, whereas the other was a crime for which the accused was accountable to society at large. Clearly, this rationale would not apply where two crimes are in issue. 195. For an examination of this fundarnental principle of restraint see Law Reforrn Comrnission of Canada, Our Criminal Law [Report 3] (Ottawa: Minister of Supply and Services Canada, 1976).
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