Mohawk1 said:
Thanks for your questions
This accident occured off base.
My son did not know the age of the underage drinker.
Yes, he did buy drinks for this person and has said so.
No, he did not have responsibility for this person
I don't know if he knew the designated driver of the other car was drinking.
My son has a spotless record--no DUI or MIP
Taxis were available.
Best information I have is that the civilian charges have been trumphed by the Military actions--does double jeopardy appy here?
To date--my son says the his and two other soldiers papers were returned for what we assume may be paperwork errors OR the charges against him don't hold water. However, the drunk designated driver of the car that caused the accidcent, the underage drinker and other passenger(s) in the car responsible for the accident have been notifyed they will be dischared after the punishments are met out.
You are only partially correct, the military charges will superceed the civilian charges, however double jeopardy doesn't apply here, instead what is called the Doctrine of Dual Sovereignty can be invoked by the state, part of the reason for asking the state. I have included a citation from a state/state Dual Sovereignty SC case. There is a high profile case in Florida involving DUI/ manslaughter/ UCNJ/CM, Dual Sovereignty applies between 2 states and/or between US gov. & or State entities. Here are 2 government links re DS/UCMJ/manslaughter:
Constitution of the United States: Analysis and Interpretation ... in the UCMJ by providing that the punishment imposed by a court-martial may ... require him to superintend the military, including the courts-martial, ...
http://www.gpoaccess.gov/constitution/html/00supp.html
601 to 699 Criminal Resource Manual 601 Constitutionality of 18 ...
... Code of Military Justice which, normally, are tried by court martial will ... question whether the "dual sovereignty" ruling would apply to "Courts of ...
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/text/t9rm06.wpd
This may also be why there has been a delay in charges being brought against lesser defendents. How many are involved from the same unit? Can the unit afford to lose 10-12 members and safely deploy? YOur son should also read up on SSCRA. Even if the lesser offending soldiers are not punished under UCMJ or given minimal punishment, they might still be liable for civilian/criminal charges and/or penanalities beyond UCMJ. No doubt, JAG is pulling their hair out with all of this.
Since Taxis were available that is going to be difficult to defend, since they could have transported the soldiers with the designated driver DUI and the underage soldier. If your son knowingly bought drinks for intoxicated soldiers, that in and of it's self is violating a general order, but if no one had more than 2 beers it may be a different story insofar as defense. Had any drank prior to the party, were they dibilitated so that alcohol might exacerbate intoxication? The bar management is partially at fault for not carding patrons which can lead to inclusion in civil action and for serving intoxicated patrons, again why the state is necessary as laws vary state by state.
U.S. Supreme Court
HEATH v. ALABAMA, 474 U.S. 82 (1985)
474 U.S. 82
HEATH v. ALABAMA
CERTIORARI TO THE SUPREME COURT OF ALABAMA
No. 84-5555.
Argued October 9, 1985
Decided December 3, 1985
Petitioner hired two men to kill his wife. In accordance with petitioner's plan, the men kidnaped petitioner's wife from her home in Alabama. Her body was later found on the side of a road in Georgia. Petitioner pleaded guilty to "malice" murder in a Georgia trial court in exchange for a sentence of life imprisonment. Subsequently, he was tried and convicted of murder during a kidnaping and was sentenced to death in an Alabama trial court, which rejected his claim of double jeopardy. The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed the conviction.
Held:
1. This Court will not decide whether the Alabama trial court had jurisdiction, where petitioner did not claim lack of jurisdiction in his petition to the Alabama Supreme Court but raised the claim for the first time in his petition to this Court. P. 87.
2. Under the dual sovereignty doctrine, successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause of the Fifth Amendment, and, hence, Alabama was not barred from trying petitioner. Pp. 87-93.
(a) The dual sovereignty doctrine provides that when a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences" for double jeopardy purposes. In applying the doctrine, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the prosecuting entities' powers to undertake criminal prosecutions derive from separate and independent sources. It has been uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute derives from its inherent sovereignty, preserved to it by the Tenth Amendment, and not from the Federal Government. Given the distinct sources of their powers to try a defendant, the States are no less sovereign with respect to each other than they are with respect to the Federal Government. Pp. 87-91.
(b) The application of the dual sovereignty principle cannot be restricted to cases in which two prosecuting sovereigns can demonstrate that allowing only one sovereign to exercise jurisdiction over the [474 U.S. 82, 83] defendant will interfere with the second sovereign's unvindicated "interests." If the prosecuting entities are separate sovereigns, the circumstances of the case and the specific "interests" of each are irrelevant. Pp. 91-92.
(c) The suggestion that the dual sovereignty doctrine be overruled and replaced with a balancing of interests approach is rejected. The Court's rationale for the doctrine is not a fiction that can be disregarded in difficult cases; it finds weighty support in the historical understanding and political realities of the States' role in the federal system and in the Double Jeopardy Clause itself. Pp. 92-93.
455 So.2d 905, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 94. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 95.
Ronald J. Allen argued the cause and filed briefs for petitioner.
William D. Little, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Charles A. Graddick, Attorney General.
JUSTICE O'CONNOR delivered the opinion of the Court.
The question before the Court is whether the Double Jeopardy Clause of the Fifth Amendment bars Alabama from trying petitioner for the capital offense of murder during a kidnaping after Georgia has convicted him of murder based on the same homicide. In particular, this case presents the issue of the applicability of the dual sovereignty doctrine to successive prosecutions by two States.
