Law: Two Punishments for One Crime?

A pair of prosecutions may not be double jeopardy

Last August the body of Rebecca Heath was found near La Grange, Ga., slumped behind the steering wheel of her family's Oldsmobile. The car had smashed into a small tree, and at first it appeared that she, and the nine-month fetus she was carrying, had died in an auto accident. X rays revealed, however, that her right eyelid had been closed over a bullet hole made by a .32-cal. slug as it was fired into her brain. Investigators in La Grange then built a case of murder-for-hire against her husband Larry, his girlfriend Denise Lambert and three local hoods enlisted with the alleged help of Heath's brother Jerry. Though Jerry has yet to be tried, the others got sentences ranging from life for Larry to ten years for Denise.

Normally, that is all there would have been to it, and the nasty, sordid little murder would have taken its place in local lore. But now the case may also earn the defendants a permanent niche in law-school textbooks, plus a place on death row. The reason is an apparently unique question of double jeopardy. It arises from the fact that while Becky Heath's body was found in La Grange, Ga., her murderers picked her up, or perhaps kidnaped her, from her home 45 miles away in Phenix City, Ala. And after some of the defendants had confessed or pleaded guilty in La Grange, the prosecutor across the border in Phenix City announced that he also planned to try them, on conspiracy and kidnap-murder charges, and would make use of their Georgia confessions and guilty pleas. After a hearing last week, a Georgia judge reserved decision on whether to allow them to be taken to Alabama for trial, while he attempted to sort out all the complexities.

The defendants, of course, are claiming that a second trial would violate the Fifth Amendment's double-jeopardy clause. The rule, as the Supreme Court reiterated it in 1975, is: "When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense." Scholars, nonetheless, tend to doubt that this precludes separate state prosecutions. Says University of Virginia Law Professor Stephen Saltzburg: "Two different states, or a state and the Federal Government, can prosecute what one state cannot prosecute twice." Agrees Harvard Law Professor Arthur Miller: "If Alabama wants to try to convict these people, then that is its right." There is more debate, however, about whether the Georgia confessions and guilty pleas can be used in Alabama constitutionally.