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Edgar Ray Killen, who recently died, was first found innocent and then re-tried for the killing of three activists.

My understanding is that one cannot be tried more than once for the same crime. So, how could Edgar Ray Killen be tried for the same crime twice?

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The USA is a federated state, so knowing the difference between devolved and sovereign authority is important.

Each "sovereign" and all entities to which it devolves power are allowed one "bite at the apple". The federal government and 50 states are sovereign (in that they have powers that they innately possess), along with recognized tribal governments.

  • The armed forces are just another part of the federal government.
  • Washington, DC is under the exclusive control of the federal government (despite limited devolved government)
  • Territories such as Puerto Rico are not sovereign, despite having some of the trappings of sovereignty. (Puerto Rico v. Sanchez Valle)
  • Native American tribes are separate from the federal and state governments (United States v. Lara), even though Congress can unilaterally revoke their recognition.
  • Cities, counties, and other entities within a state are not sovereigns, but instead exercise power devolved to them by states. If one city prosecutes someone for a crime and fails to win a conviction, another city or the state itself is barred from retrial. (Waller v. Florida)
  • The states themselves are separate, so if one state fails in a prosecution, the others can still attempt a prosecution if they have jurisdiction. (Heath v. Alabama)
  • States don't derive their inherent powers from the federal government (one of the benefits of statehood), so multiple prosecutions are possible even if the authorities are closely collaborating. (Bartkus v. Illinois )
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The Double Jeopardy Clause has a couple of important nuances that go beyond the common understanding "can't be tried twice". The original trial was for violation of a federal law, 18 USC 241 and 242: Killen was neither convicted nor acquitted. So there was no final judgment on that charge, and he could theoreitically be re-tried. His more recent conviction was for a different crime, the state crime of murder. The underlying act is the same, but the crime for which he was tried is different (actually very little similarity in the legal descriptions of the prohibited acts in the statutes, and different jurisdictions).

  • so he was actually tried for two different, though related, crimes? – user Jan 13 '18 at 19:31
  • Yes, reportedly the state charge of manslaughter, and the earlier federal deprivation of rights charge. – user6726 Jan 13 '18 at 20:09
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This particular case actually went further than the general explanation given below. Killen was tried by two different jurisdictions for two different crimes, despite both being based on the same action, and in one there was no acquittal, meaning that the same jeopardy of freedom was still held over in that case.

The common (mid)understanding lacks a key additional phrase,

one cannot be tried more than once for the same crime by the same authority in a jurisdiction.

A person in a federation jurisdiction who acts in a way to commit similar (or even identical) crimes under both federal and local laws can be tried by both authorities.

If one doesn't succeed,the other is free to take its chance.

  • Can one be tried by both authorities, and, if found guilty by both, have to be in prison for both sentences? – user Jan 14 '18 at 4:02
  • Can they? Yes. Are they? It's not usually worth spending resources to convict twice. Unless the sentence in one isn't enough, or to really make a point. – Nij Jan 14 '18 at 6:33

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