Double jeopardy clause a factor in Schweiger case

DOVER — In August 2014, Gerard T. “Jerry” Schweiger was found not guilty of murder by a jury that heard testimony connected to the January 2013 death of a 45-year-old Leipsic man.

Last week, Mr. Schweiger was charged with allegedly bribing a witness to testify on his behalf before that jury and accused of committing perjury during the trial in which he was acquitted.

With the double jeopardy clause in the Fifth Amendment of the U.S. Constitution, no person can be re-tried after a not guilty verdict is rendered in a case. No matter what elements may later arise, a not guilty verdict stands forever.

Gerard T. Schweiger

Gerard T. Schweiger

Mr. Schweiger was not immediately indicted when the Delaware State Police announced witness bribery and perjury charges last week in a news release, and he is presumed innocent until proven guilty in a court of law.

With double jeopardy in play, charges in both cases are separate and do not affect each other, even though allegations in one (witness bribery and perjury charges) possibly could have influenced a jury’s decision in the other (not guilty of murder) if later proven true.

Due to double jeopardy, the first case is not relevant to how the second will be addressed, the Delaware Attorney General’s office said.

“With regard to the new charges, the Attorney General’s office will consider the evidence, and determine whether to prosecute, just as it would in any other case,” spokesman Carl Kanefsky said.

Professor Dr. Eric Rise, associate chairman of the University of Delaware’s Sociology and Criminal Justice Department, said while the situation is “unusual,” the general rationale of double jeopardy is that once a defendant is found not guilty in a trial, there shouldn’t be opportunity for multiple prosecutions until a guilty verdict is gained.

“Though it may seem unjust in this case if the allegations are proven true, as a matter of societal policy we have decided to put the burden on the government to prove its case the first time around,” Dr. Rise said.

He said the double jeopardy clause in the Constitution is meant to protect all found not guilty of accusations, and likely always will remain ironclad.

“This is a valuable protection against overzealous prosecution and would be unlikely to change due to one unusual instance,” he said. “The only way double jeopardy could be changed is through a constitutional amendment, and I don’t see that happening.”

When double jeopardy was established, “this is not the type of case that would have been anticipated,” Dr. Rise said.

In a jury trial, double jeopardy applies as soon as the jury is sworn in, Dr. Rise said; in a bench trial with a judge it only takes effect when the first witness is sworn in.

Dr. Rise said allegations of witness bribes are unusual and issues more often include intimidation claims during organized crime or drug-related cases in which potential witnesses may not appear or refuse to testify.

“I suspect (a witness bribe allegation) doesn’t happen a lot,” Dr. Rise said. “In particular, it doesn’t happen a lot in Delaware because we’d hear more about it.”

Also, Dr. Rise said, a perjury charge is rare because “it’s pretty tough to prove …”

If a defendant is found guilty of bribing a witness and/or committing perjury during a criminal trial, that would have no effect on a potential civil lawsuit regarding issues connected with that trial, said Sheldon Pollack, professor of Legal Studies and Accounting at the University of Delaware.

In a civil suit, however, the witness judged to have been bribed arguably would no longer be available for the defense due to credibility issues, Dr. Pollack said.

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