Double jeopardy: A Philadelphia scandal

It should never have happened. On November 27, 1966, a punk criminal named William J. Barnes, by his own admission too drunk to even realize where he was, kicked down the doors of a beauty salon in East Oak Lane and started to burglarize it.

A rookie cop, Walter T. Barclay, confronted Barnes. Barnes shot him and left him paralyzed for life. That shouldn't have happened.

Forty-one years later, Barclay died. And in 2010, a Philadelphia court tried Barnes, who'd served 16 years of a 20-year prison sentence for the shooting of Barclay, on a charge of homicide. That shouldn't have happened, either.

One of the oldest maxims in the common law tradition is that you can't try a man for the same crime twice. It's called double jeopardy, and just about everyone knows about it except former Philadelphia District Attorney Lynne Abraham, who bequeathed this stinker to the court system as a last, poisoned legacy of what is now being recognized as one of the worst tenures in the city's history.

Tough or soft?

Abraham earned the sobriquet of "America's deadliest D. A." for sending more people to Death Row than any other district attorney in the U.S. This posture made her appear tough on crime. Unnoticed, until recently, was that Abraham did a poorer job of prosecuting crime, including homicides, than just about anyone else in the country too.

Now, while some of the violent offenders she failed to put away still terrorize Philadelphia's streets, she lectures her successor, Seth Williams, on the evils of not prosecuting marijuana use as a felony. Reefer madness!

Unfortunately, Williams is no paladin either. Barnes did his crime and served his time. Williams knows that, but, because Abraham served him a political hot potato and because no D. A. in memory has had the guts to stand up to the Fraternal Order of Police, Williams went ahead with this rotten case.

"'No choice' but to prosecute

Abraham got an indictment because a medical examiner testified that there was a direct link between Barclay's shooting and his death from a urinary tract infection four decades later. Williams said that testimony left him no choice but to prosecute.

Nonsense. The examiner's testimony, such as it was, had no bearing on the material legal issue: You do not try a man twice for the same offense.

If Officer Barclay had died while Barnes was on trial, the charge against Barnes could have been upgraded to homicide. But once he was tried, convicted and sentenced on the charges presented, his crime was defined, and the case against him should have been closed for good.

It's really elementary. If you can keep charging the same man for the same offense, or different aspects of it, you can keep him in jail forever. That's what they do in Russia and China. It's what you're not supposed to do in America.

The jury responds

A Philadelphia jury, though, dutifully did its best to repair the injury to the law: It acquitted Barnes on all counts. It did so after a ten-minute defense presentation and without asking a single question of the presiding judge. Those jurors, too, grasped the essential point that had somehow eluded DAs Abraham and Williams.

In court, William Barnes was a frail, white-haired man of 74, leaning on a cane. He was probably a sympathetic figure. My own sympathies, though, lay with Officer Walter Barclay.

Barnes didn't deserve to have anything more done to him. Barclay never deserved any of what happened to him at all. The law couldn't help him with that beyond what justice it had already and appropriately rendered back in the '60s.

At least, though, Barclay's tragic memory wasn't twisted into an excuse for undermining the law itself. For that, Philadelphia has 12 of its citizens to thank, and neither of its last two elected district attorneys.

A life sentence, anyway

Barnes himself still isn't free. When he was arrested on the homicide charge, he was found in possession of car keys and a cell phone, both in violation of his parole (why?). He remains in jail for that. Assistant District Attorney Edward Cameron said that cumulative jail time left over from other ancient offenses could keep Barnes in prison until 2030 because of the parole violation— in other words, almost certainly until death. Should this happen, the effect would be the same as if the jury had convicted Barnes.

You've heard of jury nullification, in which a jury refuses to convict a technically guilty defendant because it sees a higher injustice in the case brought before it? What we have here is potential prosecutorial nullification, in which a jury's verdict is to all intents and purposes overturned by a legal system determined to get its pound of flesh by fair means or foul.

In theory, courts exist in the first place to prevent private vengeance. When the police themselves demand vengeance for their own while seeking inviolability for their misconduct, and the justice system accommodates them, we have something worse than vendetta law. We have state anarchy.♦


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