DOUBLE JEOPARDY the TWIGG case, AND NFL'S RAY RICE:

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With issues such as the National Football League's (NFL's) Ray Rice suspension back in the spotlight, the legal doctrine of "double jeopardy" is now a popular topic of discussion.

Double jeopardy is one of the oldest legal concepts in the Western world.  As far back as 355 B.C., Athenian statesman Demosthenes said, "The law forbids the same man to be tried twice on the same issue."  In England, protection against double jeopardy was considered a "universal MAXIM of the common law" [United States v. Wilson, 420 U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d. 232 (1975)], and was embraced by most eminent jurists.

In sum, double jeopardy is defined as follows:

A second prosecution of a defendant for the same offense after acquittal or conviction or multiple punishments for the same offense.  The evil or wrong sought to avoided by prohibiting double jeopardy is the double trial and double conviction, but not necessarily double punishment.

The current Maryland double jeopardy decision comes from the Maryland Court of Special Appeals; DONALD TWIGG v. STATE OF MARYLAND, No. 1878, September Term, 2011 (Decision filed October 1, 2014); Deciding Judges panel Woodward, Nazarian and Salmon (Retired, Specially Assigned); 31 pages.

​FACTS

The defendant, Donald Twigg, was indicted by a Grand Jury in Charles County, Maryland on October 29, 2010, on six counts: (1) sexual child abuse; (2) carnal knowledge; (3) second degree rape; (4) second degree sexual offense; (5) third degree sexual offense; and (6) incest. The victim of all of the charges was appellant's daughter, Ms. M., who was born on March 26, 1964. The offenses charged in the indictment allegedly occurred from 1974 to 1979, when Ms. M. was nine to fourteen years old.

In August 2011, Twiggs was tried in the circuit court on all six charges.  Ms. M. testified that, beginning when she was around the age of 7 years old, Twigg began to sexually abuse her, and the abuse continued until she was approximately 15 and1/2. Specifically, Ms. M. stated that, while she was living at home, Twigg would come into her room at night and touch her sexually until he had an orgasm.  Ms. M. testified that around the age of twelve, Twigg began penetrating her with his penis.

Ms. M. indicated that the instances of penetration ceased when she was approximately fifteen and a half years old. Ms. M. said that overall, the incidents of vaginal intercourse occurred “several times.” According to Ms. M., these incidents occurred in the basement of the family home and in appellant's van in nearby parking lots.  Ms. M. also acknowledged that she was currently involved in several lawsuits against Twigg concerning family property and bank accounts. She testified, however, that the property disputes were not the reason that she had come forward with allegations of sexual abuse.

Detective Corporal Kenneth Klezia, of the Charles County Sheriff's Office's Special Victims Unit, testified that, on October 9, 2010, he met with Ms. M. to conduct a recorded telephone call between Ms. M. and appellant. During the recorded conversation, appellant stated that he always used condoms when having sex with Ms. M. to prevent pregnancy.

At the close of the State's case-in-chief, appellant moved for judgment of acquittal pertaining to the second degree sexual offense charge, which was granted. Appellant then testified in his own defense, denying all allegations of sexual abuse and claiming a misunderstanding regarding the recorded telephone conversation. In addition, appellant testified to several recent disputes between himself and Ms. M. involving jewelry, money, and property.

At the close of all of the evidence, appellant moved for judgment of acquittal as to the carnal knowledge count, which the trial court took under advisement. The jury returned verdicts of guilty on the charges of: sexual child abuse (from July 1, 1974 to January 1, 1979); carnal knowledge (from March 25, 1974 to June 30, 1976); second degree rape (from July 1, 1976 to March 25, 1978); third degree sexual offense (from July 1, 1976 to March 25, 1978); and incest (from March 25, 1974 to January 1, 1979).

The trial court erred in imposing separate sentences on defendant for second degree rape, third degree sexual offense, and incest because, according to the principles of double jeopardy, the "required evidence" test mandated the merger of defendant's sexual offense convictions into the sexual child abuse conviction for sentencing purposes.

[The Daily Record, Thursday, October 9, 2014, pp. 15A-16A; Understanding the Law: A Primer (by Attorney Charles Jerome Ware (2008)]

NFL v. RAY RICE

Essentially, the "industrial double jeopardy" argument in arbitration argues that an employee who has already been punished for an act (or lack thereof) cannot be dismissed thereafter.  However, "a second sanction only transgresses industrial double jeopardy principles if the first sanction has become final" [Zayas, et al. v. Bacardi Corporation, No. 07-1950 (04/18/08).  In sum, if Baltimore Raven player Ray Rice's previous 2-game suspension was considered "final" punishment, constitutionally he should not be punished a second time by the NFL with any additional suspension.  Such action against Rice by the National Football League would also be a violation of Rice's "industrial due process" rights.