While you don’t hear much about the Elkins’  Silver Platter doctrine these days, variations continue to crop up from time to time, such as this debacle out of Oregon.

Just hours before jurors were to begin deliberating Monday on whether a former middle-school teacher was guilty of child pornography charges, the state abruptly dismissed its case against Logan B. Jack Storm.

Instead, after four days of trial, the state changed strategy and invited federal authorities to prosecute the 35-year-old Portland man. Federal agents arrived at the Multnomah County courtroom where Storm’s trial had been unfolding and arrested the former Beaverton Stoller Middle School teacher.

Ah, the joys of dual sovereignty and the exploitation of jurisdictional differences.  As the state court trial was winding down, Storm’s lawyers argued that the prosecution failed to establish venue, that his downloading of child porn occurred within the county.

Such duplication could take place anywhere, they said. And they noted that that inability to prove venue was one factor that led the Oregon appeals court to partially overturn the conviction of another teacher accused of possessing child pornography in a similar case.

Issues of venue and jurisdiction are too often taken for granted by criminal defense lawyers, assuming that prosecutors wouldn’t be so foolish as to push a case over which they couldn’t establish such basic requirements.  Given the nature of internet crimes, however, these are issues that need to be scrutinized a whole lot harder; as here, there may be a very real issue as to where the crime occurred.  On the internet, it could happen anywhere, and proving where it happened could be essentially impossible.

After the defense argues its point, the prosecutor apparently came to the realization that they may have the better argument.

The argument, made after the state rested its case, prompted Multnomah County senior deputy district attorney Donald Rees to consult with U.S. Attorney Dwight Holton and the state Justice Department about the impact of the appeals court’s ruling.

Holton agreed on Friday to prosecute Storm, Rees said, leading to Monday’s arrest and the state’s decision to dismiss the 30 counts of encouraging child abuse in the first degree. The federal effort will not face the same venue issues that state prosecution does, he said.

That the question of venue that might impair a state court prosecution doesn’t exist in federal court isn’t particularly troubling, unless you happen to be an arch-statist.  What is monumentally troubling is that the defendant was not just put through arrest, arraignment, indictment and prosecution in the state court, but through essentially an entire trial before the prosecution came to grips with its venue problem.

And now, it starts over from scratch in federal court.

While I have little (read “none”) sympathy for the defendant in this case, a middle-school teacher who faces a massive indictment for having hundreds of images of kiddie porn, including images of children being raped, it remains outrageous that a defendant can be compelled to go through an entire prosecution to the end of trial, only to have the proceeding disappear and be subjected to it again in a different venue. 

We’re all brutally aware that double jeopardy doesn’t apply under the concept of dual sovereigns, a concept that would never have occurred to the founding fathers at the time of the Fifth Amendment as federal criminal law was intended to be extremely limited, with the states left to handle the bad guys.  Four thousand laws later, the complexion has changed, though the jurisprudence hasn’t kept pace.

Yet this just stinks.  No person should be subjected to what is tantamount to a full trial, only to have the charges dismissed and handed over to the feds on a silver platter so as to avoid failed venue in state court.  Not even this sick mutt.