Behind Bartkus: A Flamboyant Lawyer, a Vindictive Judge, and the Untold Story of Double Jeopardy’s Dual Sovereignty

New Criminal Law Review (2021 Forthcoming)

22 Pages Posted: 3 Mar 2021 Last revised: 2 Apr 2021

See all articles by Stephen E. Henderson

Stephen E. Henderson

University of Oklahoma - College of Law

Dean A. Strang

Loyola University Chicago School of Law

Date Written: 2021

Abstract

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the ‘impartial’ judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from service for life, refuses to release the defendant, and prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime.

To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy ‘dual sovereignty’ that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.

Keywords: criminal procedure, adjudication, jury, double jeopardy, dual sovereignty

JEL Classification: K14

Suggested Citation

Henderson, Stephen E. and Strang, Dean A., Behind Bartkus: A Flamboyant Lawyer, a Vindictive Judge, and the Untold Story of Double Jeopardy’s Dual Sovereignty (2021). New Criminal Law Review (2021 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3796450 or http://dx.doi.org/10.2139/ssrn.3796450

Stephen E. Henderson (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)

HOME PAGE: http://www.law.ou.edu/directory/stephen-e-henderson

Dean A. Strang

Loyola University Chicago School of Law ( email )

25 East Pearson Street
Chicago, IL 60611
United States

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