When Double Jeopardy Doesn't Apply For Military Personnel

On behalf of Law Offices of David P. Sheldon posted in Criminal Charges on Thursday, February 18, 2016.

Most people have heard of the concept of Double Jeopardy, the principle that a person cannot be convicted of the same crime twice. Military service members often believe that means that they cannot be prosecuted by both the military and civlian authorites. That belief, however, is incorrect. Civilian criminal laws and the UCMJ are different sets of laws, even if they are often similar. Service members may and have been prosecuted under both sets of law.

This blog post will explain the uncommon - but very real - circumstances.

The case of Navy Petty Officer 3rd Class Austin Greening

In 2013, Navy Petty Officer 3rd Class (PO3) Austin Greening was found guilty in Virginia state court of second degree murder for the death of his friend, Kristopher Klubert. As a result of being found guilty, he faced up to forty years in prison. After a successful appeal, however, Greening won a new trial. He then agreed to plead guilty to involuntary manslaughter in return for three years in state prison, with all but six months of the sentence susepended.

According to reports, however, Klubert's parents were displeased with the outcome. After Greening was released from the Virginia prison system, the Navy got involved. On the same day Greening was released from civilian prison, he was arrested by Naval authorities and put in the brig. He now faces a possible court-martial for murder and obstruction of justice under the UCMJ.

What about double jeopardy?

Double jeopardy would apply if Virginia authorities tried to charge PO3 Greening for Klubert's death a second time given that they already convicted him under their involuntary manslaughter law. Double jeopardy also prevents the military from convicting someone under the UCMJ and then trying to do so a second time for the same actions.

Here, however, PO3 Greening was charged under one set of laws-Virginia state law-and now faces charges under a different set of laws-the UCMJ. While this may seem unfair and while PO3 Greening's attorneys will certainly and understandably argue that it is unjust, it is not illegal.

On one hand, service members should know that what is occuring with PO3 Greening is not common. More often, civilian and military authorities agree on who will take the lead in investigating and prosecuting, and then accept the results. On the other hand, service members should know that they are always subject to both military and civilian law and face potential prosecution under both sets of law. Moreover, even in normal circumstances, a service member who is prosecuted under civilian law may then be separated by the military as a result. A separation is not a criminal action-it is administrative, and comparable to a civilian employer who terminates an employee for criminal misconduct.

Along with representing service members worldwide, attorneys at the Law Offices of David Sheldon are also licensed to represent clients facing criminal charges in Virginia, Maryland, and District of Columbia courts. If you are facing criminal investigation or prosecution either by the military, or in those particular civilian jurisdictions, call the Law Offices of David Sheldon for a free consult.