Bryan Fischer Has No Idea What Double Jeopardy Means

Bryan Fischer, always eager to spout off on issues he knows absolutely nothing about, told his listeners this week that Ferguson, MO police officer Darren Wilson cannot be charged under federal law because the Constitution forbids double jeopardy. He’s wrong on every possible level.

Citing the Fifth Amendment’s language that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” Fischer laughably claimed that meant that Wilson can never be prosecuted for possible crimes related to Michael Brown’s killing.

“He was just put in jeopardy of life or limb,” Fischer argued. “No indictment was returned. He cannot be subject to the process a second time.”

No, you dolt. A state grand jury deciding not to charge him does not even prevent this particular prosecutor from filing charges (he doesn’t need the agreement of a grand jury to do so, he can indict himself if he wants). And it certainly does not foreclose federal charges. Double jeopardy applies only where there has been an actual trial and acquittal; the very fact that he was not charged or tried means there is no double jeopardy at all, even at the state level.

And even if he had a state trial under state law, he could still be charged under federal law because it would be a different offense under a different law. That’s what happened to the cops in the Rodney King case, they were acquitted on state charges, then charged and convicted under federal civil rights law. There was no violation for double jeopardy because the statutes under which they were charged in the two trial were different. A few minutes of googling would have taught him this, but that would show some concern for the truth, something he lacks entirely.


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  • D. C. Sessions

    That’s not fair, Ed. He has great regard for the truth — that’s why he avoids it so meticulously. It’s a mortal danger to him.

  • illdoittomorrow

    “And even if he had a state trial under state law, he could still be charged under federal law because […]”

    This is all part of the replacement of rule of law by Muslim-Marxist tyranny, which has only worsened since Obama appointed all those activist judges to rewrite the law and carry out his unconstitutional orders. First he let in all the Ebola carrying immigrant terrorists to destroy our jobs and Christian nation, now he wants to oppress and persecute a law abiding peace officer!!

    Also, this distracts us from BENGHAZI.

    Have I left anything out? Channeling frightwinginess makes my head ache.

  • Artor

    Illdoitomorrow, I think you might have just made Modusoperandi proud.

  • subbie

    Just a couple of little tweaks.

    First, jeopardy attaches when a jury is sworn in. It doesn’t matter whether the trial goes to verdict or not.

    Second, the reason the feds can charge after a state proceeding is not because they are using a different statute, it’s because they are a different sovereign.

  • colnago80

    Re subbie @ #4

    Not entirely true. If a mistrial is declared during the trial, the judge has the option to dismiss the case without prejudice, meaning that the prosecutor can retry it. If the case is dismissed with prejudice, then the prosecutor cannot retry it.

  • subbie

    colnago, you are correct. A mistrial doesn’t necessarily prevent retrial, depending on several different things. Thanks for catching that.

  • John Pieret


    Generally speaking, if a mistrial is caused by misconduct by the prosecution, jeopardy attaches and the defendant can’t be retried. If it is caused by defense misconduct, a retrial can be had. It gets trickier when a mistrial is declared because of juror misconduct or a mistake by the judge (yes, they sometimes admit it) or because the jury comes back with an inconsistent verdict (acquitting a defendant of a lesser included crime which is an essential element of the crime the defendant is convicted of). We lawyers make our living off such arcane subjects.

  • abb3w

    See also United States v. Williams (1992).

  • John Pieret

    Bryan Fischer Has No Idea …

    You could have stopped there, Ed.

  • thebookofdave

    Not only is Bryan Fischer ignorant of Double Jeopardy! He won’t even bother to phrase his responses in the form of a question. I’ll take Clueless Theocrats for $400, Alex.

  • dan4

    Interesting that you brought up the Rodney King case. I clearly remember the late Darryl Gates, on his radio show, lamenting that the four police officers being brought up on federal charges was a case of “double jeopardy.”

  • anubisprime

    Rotten turnips have more sense!

  • caseloweraz

    “in danger of life OR limb”? (emphasis added.)

    It’s just a minor current in the torrential flood of Fischer’s illogic. But who else would mangle that phrase in such a way?

  • colnago80

    Re dan4 @ #11

    For those who might know, Darryl Gates was the former police chief of Los Angeles who was forced out after the Rodney King episode.

  • timgueguen

    thebookofdave brings up an interesting thought. What would happen if Bryan Fischer was a contestant on Jeopardy? I suspect the episode wouldn’t reach a conclusion and hence would never air, as Fischer would be unwilling to admit he gave a wrong answer on one of his pet subjects.

  • anthrosciguy

    It seems obvious that the unusual (to say the least; possibly illegal) actions of the prosecutor during this grand jury was not just to poison the well in advance of any possible trial, but also to give the mistaken impression that a trial had taken place, making ill-informed statements like Fischer’s seem sensible to rightwingers.

  • d.c.wilson


    It would probably much like the episode of Cheers where Cliff was dragged off the set for refusing to admit that he got the Final Jeopardy question wrong.

  • whheydt

    And…regardless of either state or Federal charges or trials…Darren Wilson could *still*be subject to a wrongful death suit without it entailing double jeopardy. (No “life and limb at risk” in a civil suit…just money. With the added advantage that you can compel testimony from the defendant and construe 5th Amendment pleas against him.)

  • marcozandrini

    Shorter title: “Bryan Fischer Has No Idea”!!

  • Moon Jaguar

    That Fischer is a sly one! Now he can attack the president for trashing the Constitution if the Justice Department charges Wilson for civil rights violations.

  • dingojack

    timgueguen (#15) – if it turned out they were wrong could Fischer be invited back to continue playing? Or would that be Double Jeopardy? [desultory drum fill]

    To atone for the above — THIS.