2nd Jude trial stands as a rarity
By GREG J. BOROWSKI
Milwaukee Journal-Sentinel
MILWAUKEE, Wisc. — In a summer of sequels, Frank Jude Jr.'s came with the ending many hoped for the first time around: Guilty verdicts, closure, the call for justice finally heard.
The fact that it took two trials to get there, one state and one federal, may be a measure of a flawed justice system - or one working properly, getting the “right” result in the end.
Legal scholars and others say the outcome may build confidence in the justice system, but caution that such second prosecutions run the risk of undermining that confidence.
That is one reason, experts said, that such cases are rare and likely to remain so.
Their comments centered on the legal dynamics and principles that are central to repeat prosecutions more than specific decisions and facts involved in the Jude beating case.
The long-running, racially charged case ended Thursday with guilty verdicts against three former Milwaukee police officers, all white, in the October 2004 beating of Jude, who is biracial.
The federal government stepped in last year after the three - Jon Bartlett, Andrew Spengler and Daniel Masarik - were acquitted by an all-white jury on state charges.
They and others were accused of violating the civil rights of Jude and Lovell Harris, who is black, in the October 2004 incident at a party at Spengler’s home.
Because federal court is a different jurisdiction, there was no violation of the constitutional prohibition on double jeopardy, which bars authorities from trying a person twice for the same crime. But such cases can raise legal eyebrows.
“The current law is clear,” said Albert Alschuler, a Northwestern University law professor who once worked as a high-ranking aide in the U.S. Justice Department’s criminal division. “As long as two prosecutions are brought by ‘separate sovereigns,’ the double jeopardy clause doesn’t apply. But the current law is crazy, and many judges and academics have recognized that it’s crazy.”
Why?
From the defendant’s perspective, Alschuler said, it “looks as much like double jeopardy” no matter who brings the charges.
Indeed, the federal trial in the Jude beating often seemed like a rerun, focusing on the same actions by the same defendants, with the same witnesses providing essentially the same testimony.
(A fourth federal defendant, Ryan Packard, who was not charged at the state level, was acquitted.)
“There’s a danger that prosecutors will keep trying until some court or jury ‘gets it right,’ ” Alschuler said.
In the wake of a case such as the Jude one, a verdict hailed from central city streets to City Hall, that concern may seem like a quibble.
But picture a different scenario in which all failed criminal cases are picked up by another jurisdiction and tried over, depriving the justice system of certainty or simply opening it to public and political pressure.
Justice, Alschuler said, “cannot depend on whose ox is being gored.”
High-profile cases
It appears no statistics are kept on how often the federal government steps in after an acquittal on state criminal charges. But by all accounts, such prosecutions are rare.
The cases that stick most in memory are those, such as the Jude case, that involve intense emotion, public outcry and, often, racial tensions.
Most famous was the Rodney King case in Los Angeles, in which police officers were acquitted on state charges of beating the black motorist during a 1991 traffic stop.
With the beating caught on video, post-verdict outrage led to days of rioting.
The officers later were convicted on federal charges of violating King’s civil rights - the same charges faced by the officers in the Jude case.
There also was the case of a Jewish man stabbed to death during mob violence in Brooklyn in 1991, after a car accident that killed a 7-year-old black boy.
A state acquittal was followed by political pressure for federal charges, which ultimately succeeded.
Michael O’Hear, a Marquette University law professor, said it’s understandable that such situations are rare: A failed state case often signals a weak case.
“I don’t think it is a great idea to re-prosecute these cases in general,” O’Hear said. “In the law, there is a very strong interest in closure, in having the matter resolved and in one court system respecting the judgment of another court system.”
Indeed, that thinking is consistent with decades of court rulings in an area of law known as “habeas corpus,” involving challenges to detentions as unlawful.
Federal courts in such cases have consistently declined to take jurisdiction and overturn appeals of guilty verdicts within state court systems, O’Hear said. In effect, the presumption is the state courts got it right.
Second chance
“A lot of things are thrown off when you have a high-profile case like the Jude case,” O’Hear said. “In a case where there is so much public concern, the federal prosecutors will be more justified in going after defendants who won at the state level.”
In some ways, the scenario echoes civil rights cases of the 1960s in the segregated South, where federal prosecutors pursued cases that failed at the state level or were ignored entirely.
“My sense is Milwaukee in 2007 is a very different place than the South in the 1960s, and the process is much fairer,” O’Hear said. “There’s just no comparison with, say, Alabama in 1964.”
Such cases, he said, raise some important questions:
“Is the deck stacked so profoundly against state prosecutors that a federal prosecution is justified?” he said. “Or do we say no court system is absolutely perfect” and generally allow lower court decisions to stand?
During the state trial, then-Milwaukee County District Attorney E. Michael McCann railed against a police code of silence, and others criticized the case’s all-white jury.
In the federal case, the 12-person jury included one African-American.
“When you have a racially charged case, in defense of prosecutors pursuing it a second time is the idea the first verdict wasn’t based on the evidence, but was based on bias . . . that the verdict wasn’t rooted in fact,” said Walter Dickey, a University of Wisconsin-Madison law professor. “That is what makes the second prosecution defensible.”
He noted, however, that there can be many reasons for an acquittal, from the facts of the case to the “vigor and competence” of prosecutors and the clarity of jury instructions.
After the initial King verdict, Dickey got a copy of the jury instructions and said he found them “incomprehensible to a law professor.”
In both cases - Jude and King - another factor also was at work: The accused were police officers.
"(Such cases) are more difficult for jurisdictions to undertake,” Dickey said. “I think any time you get these police prosecutions, people tend to give them a fair amount of leeway.”
In theory, some say, if the same facts were involved but Jude was beaten by a group of white construction workers, there may have been a conviction at the state level.
At the federal level, U.S. Attorney Steven Biskupic was able to win guilty pleas from four officers. The prosecution used only one - Joseph Schabel - on the witness stand in its case.
Schabel admitted he “stomped” on Jude’s head when he arrived while on duty - though as the star witness in the state trial denied he beat Jude. Other officers testified that they didn’t collect evidence or follow department procedures.
That night, Jude had arrived at the party with Harris and two female companions. The off-duty officers said they questioned the two men and detained Jude - Harris ran away - after they suspected a police badge had been stolen.
Jude was arrested at the scene, over the missing badge, but was never charged. And no badge was recovered.
Nathan Fishbach, who served as interim U.S. attorney and now is in private practice, said the convictions mean the case will be closely examined in legal circles.
There are few such criminal civil rights cases, he said, and even fewer involving police officers.
“It is significant,” Fishbach said. “This is an extraordinary result in this matter.”
He and others said that for Biskupic to move ahead with the case, he would have had to get the blessing of the federal Department of Justice.
Biskupic acknowledged that when he met with Attorney General Alberto Gonzales last spring, Gonzales wanted to talk about the Jude case.
Fishbach said the department, which dispatched prosecutors from its Civil Rights Division to help, carefully picked this case.
“The department itself realizes it wants to make sure that the appropriate precedent is made through the case,” Fishbach said.
John Diedrich of the Journal Sentinel staff contributed to this report.
Copyright 2007 Milwaukee Journal-Sentinel