Thursday, June 29, 2006


In New Mexico we have two recent instances which would seem to involve
double jeopardy questions. In both instances, there is no such problem.

First, there are the indictments in State court of witnesses in the federal
prosecution of Robert Vigil, the former State Treasurer. Those witnesses
were prosecuted in federal court, plead guilty, and bargained for leniency
by giving testimony against Vigil. The witnesses gave their testimony and
the Vigil prosecution resulted in a mistrial for jury disagreement. It was
reported that one juror held out, on the basis that Vigil had been “set up.”
No doubt he had been set up; the question submitted to the jury was
whether Vigil was guilty as charged. A lot of wasted time and judicial
resources, because the federal government (as New Mexico) unnecessarily
requires a unanimous verdict from its twelve-person juries.

Back to jeopardy. Can the State prosecute the federal witnesses for
crimes which essentially are the same as those for which the federal
government has or will sentence these same defendants? The answer is
yes, because the United States Supreme Court has ruled that the United
States and the State of New Mexico are two separate sovereigns.
Jeopardy in one is not jeopardy in the other; hence no double jeopardy.

Second, we see in the newspapers this week that a number of sex
offenders have been sentenced without having added to the sentence of
imprisonment, a long period of parole or probation. The long period of
supervision after release from prison, is a mandatory provision of the
legislature. Some judges imposed sentence without following the statute.
Now the State will seek to have the prisoners resentenced. The result will
be that the new sentence will imposed conditions of confinement or
supervision that were not included in the original sentence. This is
forbidden, as a general rule (double punishment). Once a sentence has
been imposed, it can be reduced, but not increased, without offending the
constitutional provision against double jeopardy.

However, if the Judge has imposed an illegal sentence, she may
resentence, to a legal sentence, even though the new sentence exceeds in
severity the old sentence. “The law is common sense, put in good