Lou Pole was indicted on charges of first degree murder and pled not guilty to the killing of his three-year-old son. The prosecution sought the death penalty in a six week trial that received intensive national media attention and was a popular topic on television talk shows. Pole did not testify at his trial. To the surprise of many, the jury found Pole not guilty of murder and he was released a free man. Haunted by the notoriety of the trial, Pole had difficulty finding a job. After several months without any income, Pole accepts a substantial advance from a publisher to write a “tell all” book about his ordeal. With much public anticipation, Pole’s book is published and it is immediately apparent that the jury was unaware of many factors that would clearly establish Pole’s guilt, including, Pole’s brazen statement that he got away with murder. Can Pole be charged again based upon the newly discovered evidence?

Not likely. Double jeopardy is a procedural defense that forbids Pole from being tried again in a criminal court on the same or similar charges. The concept of double jeopardy is found in the Fifth Amendment to the U.S. Constitution which maintains that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Accordingly, despite Pole’s confession, he would be immune from further criminal prosecution. However, if evidence were to come to light that Pole committed another crime in connection with the event, e.g. conspired with another person to kill his son, this would be considered a different crime, with distinct facts, which would allow for new charges and a new trial. Moreover, while a “tell all” book might be tempting, it could be very costly. Pole’s admission could and would be used in a civil lawsuit brought against him by his son’s estate.

The recent mistrial that was granted in the Roger Clemens perjury trial raises interesting legal questions as to when jeopardy attaches. In the Clemens case, the judge declared a mistrial almost as soon as the trial began based upon the prosecution’s failure to abide by a pretrial order. The question then becomes, how far must a trial proceed before the prosecution has had their one opportunity to obtain a conviction? While most experts agree that jeopardy attaches when a panel of jurors have been sworn in, whether or not the court will require Clemens to stand for a second trial could ultimately hinge on whether the judge considers the prosecution’s miscue to have been accidental or intentional.