Money & the Law: With every rule there seems to be an exception – Denver Gazette

As has often been said, the law consists largely of rules and exceptions to rules. Heres an example.

In 1989, in Mesa County, Rafael Aguilar Garcia shot and killed a man who was hanging out with Garcias estranged wife. Garcia was charged with first-degree murder, but before he could be tried, he fled to Mexico. Colorado sought to extradite him. However, that attempt failed. Colorado then provided Mexico with a book containing evidence of the shooting and Garcia was tried in a Mexican court in a proceeding authorized under Mexican law involving only documents. In that proceeding, Garcia was acquitted.

Now, fast forward to 2016 when Garcia, presumably comforted by the passage of 27 years time, flew into Denver International Airport and was promptly arrested on an outstanding warrant from his 1989 crime. Garcia was shortly thereafter tried in Mesa County District Court and convicted of first-degree murder. He appealed his conviction to the Colorado Court of Appeals and that court, on May 13, affirmed the conviction.

Garcias main argument on appeal was double jeopardy. Although you might know this from your diligent study of the U.S. Constitution, the Fifth Amendment to the Constitution (a part of the Bill of Rights) says a person might not be twice put in jeopardy for the same offense. And Colorados Constitution, in Article II, Section 18, says the same thing.

However, as the law of double jeopardy evolved, it came to be that a person could in fact be prosecuted twice for the same conduct, provided the prosecutions were brought by separate sovereigns. The theory was: there were two separate offenses one against each sovereign. So, for example, the United States could prosecute someone for violating a federal statute and a state could prosecute that person for the same conduct if the conduct also violated a state statute.

But Colorado (and several other states), not liking this end run around double jeopardy protection, passed a statute saying Colorado could not prosecute someone who had been tried in another jurisdiction, whether that prosecution resulted in a conviction or an acquittal. This statute effectively negated the body of law allowing prosecutions by separate sovereigns for the same conduct. Garcia relied on this statute in his appeal.

The Court of Appeals, however, didnt buy Garcias argument. It looked at the Colorado statute in question and noted (correctly) that it only references previous prosecutions by the United States, a state or a municipality, and the court concluded Mexico, as a foreign country, didnt fall into any of those buckets. Thus, the statute didnt apply and, since Mexico and Colorado were clearly two different sovereigns, Garcias acquittal in a Mexican court did not give him double jeopardy protection from a second prosecution in Colorado.

Rule/exception to rule even when the rule comes from the Bill of Rights.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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Money & the Law: With every rule there seems to be an exception - Denver Gazette