Q and A with Attorney Carlos Gamino - Part 4by Attorney Carlos Gamino on 07/10/14
This post is the fourth in a series of eight that features a question-and-answer session with Attorney Carlos A. Gamiño. As a criminal defense attorney in the Milwaukee and Waukesha areas, Carlos enjoys helping people solve legal problems.
Q: What is double jeopardy?
Attorney Carlos Gamiño: Double jeopardy is being tried twice for the same crime if you’ve been acquitted or convicted.
Q: Does a new trial, such as in the case of a mistrial, count as double jeopardy?
Attorney Carlos Gamiño: No, except under rare circumstances, a new trial after a mistrial, or a trial that didn’t end in an acquittal (being found not guilty) or in a conviction (being found guilty) doesn’t count as double jeopardy. Most of the time, double jeopardy only counts for cases in which a verdict has been reached and where you aren't the person requesting a new trial.
Q: What about people who commit crimes who are in the military? Can they be tried in two separate courts?
Attorney Carlos Gamiño: Yes, people who are in the military can be tried in military court for a crime and then tried in a civilian court. That’s not double jeopardy; people in the military are bound by two codes of justice – one is called the Uniform Code of Military Justice, and the other is our civilian justice system.
That means members of the Wisconsin National Guard or other reserve forces who are convicted of DUI/OWI, burglary, breaking and entering or any other crime on the civilian side can also face a trial in a military court. Double jeopardy doesn’t come into play in cases like these because military service members sign an agreement when they join that says they’re bound by an additional set of laws.
Similarly, it isn't double jeopardy to be tried for a crime in federal court and in state court. State court and federal court are different jurisdictions and they are considered different prosecutions, even if it involves the same event. While it isn't very common to see, if the conduct you are alleged to have been involved with breaks both a state law and a federal law then you face prosecution and penalty under either state or federal law, or both. This issue most often comes up in cases involving allegations of drug trafficking or human trafficking.
Q: What do you do if you think your double jeopardy rights are being violated?
Attorney Carlos Gamiño: If you feel your rights are being violated, you need to call a Milwaukee criminal defense attorney right away. There’s no excuse for your Constitutional rights to be violated, and a lawyer can help protect you under Wisconsin and federal law.
Our next Q & A with Attorney Carlos Gamiño covers entrapment and what you should do if you’re coerced into committing a crime.