The  acquittal of former cops Kenneth Moreno and Franklin Mata for rape does not sit well with some.  It’s not that few people bought their story, that their drunken charge enticed them by dancing naked, except for her bra.  It’s not that people bought the claim that Moreno just “snuggled” with her, maybe kissed her on the shoulder.  Nah.

It’s that in the hierarchy of things hated, rape is a sacred cow.  If a women says she was raped, then she was raped (unless she later admits she wasn’t raped, but then we start screaming “lalalalalalala” so the offensive idea can’t be heard).  The acquittal sparked outrage.  By definition, an acquittal couldn’t possibly mean that despite the stench of guilty cops, the proof fell short.  Except in this case, it did.

Howard Wasserman at  PrawfsBlawg raises the specter of one of the most dreaded weapons in the prosecutors’ arsenal, the nuclear option for prosecutions that fail to achieve the societally demanded outcome. 

Last week’s acquittal of two New York City police officers on rape charges (they were convicted on three counts of official misconduct, resulting in their immediate firing and some further criminal punishment) has sparked outrage and protests. The victim still has a multi-million dollar federal civil rights action against the officers and the city.

But might the Justice Department also bring a federal civil rights prosecution against the officers? Successive or dual federal prosecutions based on “substantially the same act(s) or transactions involved in a prior proceeding” are governed by DOJ’s Petite Policy, which lays out three requirements for a federal prosecution:

[F]irst, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The Petite Policy isn’t law, but rather the Department of Justice’s internal guidelines for when it should exercise one of the law’s most dreaded and disingenuous weapons: Dual Sovereignty.  It smacks of a violation of double jeopardy, but the caselaw says otherwise.  It’s one of those things that only judges and lawyers can accept; by common definition, the construct of dual sovereignty is little more than a hypertechnical rhetorical trick to circumvent the constitutional prohibition against trying a person twice upon the same facts.

There is a real purpose to the policy, to overcome the situation where a local prosecutor takes a dive in a case against someone, assuring acquittal (and thereby precluding penal consequences) against someone when there is strong evidence of a heinous crime, but where a conviction is locally unpalatable, whether politically or socially.  The acquittal of a “respected” Klansman for the lynching of an “uppity” black man is the paradigm.

Wasserman talks about the prosecution of Stacey Koon and Laurence Powell following the Rodney King beating as the “most famous example” in his lifetime.  By limiting his point to his lifetime, he omits the best argument for dual sovereignty, and relies instead the less convincing application of the government’s rationale.

The second element is where a lot of the action occurs. Under the policy, federal interests have presumptively been served by a state prosecution, regardless of outcome. That presumption may be overcome based on a number of factors, including indications that nullification occurred in the prior prosecution or where the state prosecution failed on an element that would not have to be proven in the federal prosecution. The presumption also may be overcome, regardless of the outcome in the state prosecution, where:

first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The nullification point, one that current adherents of the cause of jury nullification often forget, relates back to the Klansman example, where the jury of whites won’t convict one of their own.  The second, where the state prosecution includes elements not needed in the federal prosecution, thus allowing a successful second prosecution solely because it’s just plain easier to convict, is particularly noxious.  Not enough proof? Eliminate the troublesome elements. Easy.

The third argument to overcome the presumption that a state prosecution vindicated federal interests, however, is where the Petite Policy is reduced to a joke.  The language aside, it simply means where the feds decide that they really, really want to convict.  Where the “result” was “manifestly inadequate” sounds better, but means the same thing.

So is this an appropriate case for a successive federal prosecution?

This was a high-profile state prosecution that drew a lot of media and public attention. There is visible public anger over the verdict . . .

DOJ obviously wants to avoid the appearance that it brings subsequent civil rights prosecutions simply because the media pays attention to a case and enough of the public believes a state court verdict was wrong and expresses that belief loudly enough. But there are serious federal interests in gender equality and in stopping police misconduct that may justify a prosecution here. And because the case is something of an outlier on its facts, it could be a flashy-enough prosecution to give the federal government “more bang for the buck” in civil rights enforcement.

And this is what’s wrong with the Petite Policy and the concept of duel sovereignty.  Manhattan District Attorney Cy Vance was right to bring the case to trial, there being enough evidence to try the case and put it in the hands of a jury to decide.  It was fought hard.  Even the brothers in blue didn’t back up Moreno and Mata, as they would have if they had simply raped some black guy with a plunger.  And yet, the jury acquitted because the evidence fell short of proof beyond a reasonable doubt. 

Sadly, the defendant police officers may have gotten away with a horrific abuse of their office and authority.  Happily, a jury decided the case not on the anger and disgust of the allegations, but on the lack of evidence of guilt, despite the stink.  That’s how it’s supposed to work.  For those who balk at the fact that the system always seems to work better when it’s a cop in the dock, another unfortunate reality, the answer isn’t to be unfair to cops, but to be more fair to all.

There may well be some great headlines available for the United States Attorney for the Southern District of New York, Preet Bharara, for trying to appease the the blood lust, but there is no legitimate basis to prosecute Moreno and Mata a second time.  The Big Apple tried hard to convict the cops for rape and failed.  There is no legitimate justification for the government taking a second bite.