The Corner

McCarthy on the Wilders Mistrial

I asked Andy about the Wilders mistrial, and though he’s out and about and thus not in a position to blog about it, he had this to say via e-mail:

I believe [Dutch prosecutors] do have the same discretion [to not retry the case], but as we’ve seen, that’s very limited discretion — in their system, the court gets to reverse their charging decision.

It would seem to me that the interesting question here is double jeopardy — which is even stronger under European law than it is under U.S. law. In the U.S., we follow narrow DJ — it is seriously limited by 1- the so-called Blockburger “elements of the offense test” (i.e., if you get acquitted of robbing a bank, I can indict you the next day for conspiracy to do the same bank robbery — no double jeopardy even though the same evidence b/c substantive robbery and conspiracy are different crimes); and 2- the dual sovereignty doctrine (if you are acquitted in New York State for bank robbery, I can indict you federally the next day for the same bank robbery b/c NYS and the U.S. are not the same sovereign).

In Europe, they follow “equitable double jeopardy,” which basically means you get one shot to convict the guy for any acts arising out of a single criminal transaction. Wilders will argue, I’m sure, that they had their shot. The Dutch court may counter that it really wasn’t a full shot — more like a mistrial than a verdict because the presiding court never ruled even though the prosecutors tried to dismiss. (In our system, there is no DJ protection for a mistrial or a conviction that gets reversed on appeal based on some legal error, only for a verdict.)

Most Popular

White House

A Justified Pardon

President Trump’s pardon of retired General Michael Flynn, who fleetingly served as his first national-security adviser, was a justified act of clemency. You don’t have to be a fan of how Trump has wielded his pardon power (often recklessly and on behalf of friends and supporters) or believe that Flynn was ... Read More
White House

A Justified Pardon

President Trump’s pardon of retired General Michael Flynn, who fleetingly served as his first national-security adviser, was a justified act of clemency. You don’t have to be a fan of how Trump has wielded his pardon power (often recklessly and on behalf of friends and supporters) or believe that Flynn was ... Read More
Film & TV

The Brilliant, Scabrous Satire of The Boys

Mega-corporations are the new Nazis: Everybody hates them. The Left deplores them for exploiting workers; the Right despises them for injecting woke politics into everything. The cracked superhero series The Boys capitalizes on the unifying potential of this enmity, and what’s more, it’s being brought to us ... Read More
Film & TV

The Brilliant, Scabrous Satire of The Boys

Mega-corporations are the new Nazis: Everybody hates them. The Left deplores them for exploiting workers; the Right despises them for injecting woke politics into everything. The cracked superhero series The Boys capitalizes on the unifying potential of this enmity, and what’s more, it’s being brought to us ... Read More