You are letting murderers, rapists, molesters walk free.

THE INJUSTICE OF BRENDA SCHAEFER
Written by:  Rondee Wood

Imagine your sister, daughter, mother, or friend...  blindfolded, gagged, and bound by her hands and feet.  She's forced to strip off her clothes and is placed in sexually suggestive positions while a man rapes, sodomizes, and beats her.  A woman stands nearby, snapping photograph after photograph, as if to document his conquest that was the humiliating torture that ends her life.  Over one hundred photographs were taken of your loved one, as a trophy for his conquest.  After discarding her broken dead body, he smirks with pride as he relives the moment over and over again through these gruesome photos.  To make the situation worse, you discover that it is someone she knew and trusted.  Although he is soon suspected in her murder, he cannot bring himself to destroy the only record of his legacy and so he hides the photos.  In the months to follow, the woman who took the photos reveals their existence, but they cannot be found. During the criminal trial of this man, the jury decides that without proof of the photos, the woman is not credible enough to prove his guilt.  He is acquitted of the murder.  Ironically, in a separate trial, the woman is found guilty of her involvement in the murder and put in prison.  Six months pass and the photographs are finally discovered, proving to the world the conclusive guilt of this man that you now despise.  You think, justice at last!!!  Well, you're WRONG! 

After the photos are discovered proving his undisputed guilt, you discover that our justice system can only prosecute this man on a perjury charge.  At the sentencing, the court allows him to turn to you and your family and brag that he was, in fact, the person responsible for the rape, torture and murder of your loved one.  As he proudly recalls the moment in which he took her from you forever, he smirks; and with a smile in his eyes, he tells you 'not to worry' because she didn't really suffer.  Then as if it never happened and before you get a chance to respond, he turns and walks out of the court room to quickly serve a minor sentence for perjury.  In just a few years, he will be free again.  Free to roam the earth.  Free to enjoy the pleasures of life.  Free to continue a career, have a family, and travel the world.  An empty feeling sweeps over you as you realize that he will never pay for the pain and eternal grief that he has caused you and your family.  As you watch him walk away, an ominous thought suddenly consumes you and you shutter to think that this sexual sadist and murderer will soon be free to walk the streets again.  Free to hunt down his next victim and no one can stop him.  He will never be held accountable for ending the life of your loved one.  He will never be prevented from the future opportunity to kill someone else's sister, daughter, mother, or friend.

What would you say if the story above was true?  That there are murderers, rapists, sex offenders, and child molesters out there walking among us. What if you or your loved one was their next victim because, although we know they are guilty of these violent crimes, we as a society let them go free?  Well, the story above is true.  It's the story of the eternal injustice of a real woman named Brenda Sue Schaefer and the disappointment felt by the family she left behind.

HISTORY OF THE DOUBLE JEOPARDY LAW

The Double Jeopardy clause has origins dating all the way back to the 12th century, during the ruling of King Henry II.  It has been said that the idea began as a result of a disagreement between the King and Thomas Becket, the Archbishop of Canterbury, regarding an issue of whether a conviction in the religious court could later be tried again in the King's court.  The conception of "double jeopardy" was born and later developed into a portion of the Magna Carta, an English document that was originally issued in 1215 to proclaim rights, laws, and procedures expected of the King's people.  This document is arguably the primary foundation of common and constitutional law used in our country today.             

RECENT CHANGES MADE IN THE UNITED KINGDOM, AUSTRALIA
While the principles behind the Magna Carta have greatly contributed to our Constitution and the freedoms and privileges experienced by all Americans; it is, in fact, a document containing fundamentals dating all the way back to 1215.  Why then is it so ludicrous to believe that these standards should be updated along with all of the advancements in science and technology that we see today?  In Europe, many countries allow the prosecution to appeal an acquittal to a higher court.  The appeal is interpreted as a continuation of the original trial and therefore, does not fall under the principles of double jeopardy.  In the past few years, the topic of double jeopardy has made headlines in many parts of the world, including the very country that commenced the standards by which we live here in the United States.  The English Parliament recently passed the Criminal Justice Act 2003 in order to clarify and update the infrastructure that makes up the double jeopardy clause.  Under this novel doctrine, retrials are allowed when "new" and "compelling" evidence emerges in cases of murder, manslaughter, rape, kidnapping, armed robbery, and some drug crimes.

In Australia, the indictment of perjury after an acquittal has been viewed as a direct conflict with the original verdict.  How can a person be found guilty of perjury by declaring their innocence in a case for which they were acquitted?  Wouldn't that ruling thereby contradict the verdict of the original trial?  When convincing new evidence emerged disproving a citizen's sworn alibi for a case in which he was previously acquitted, the High Court of Australia convicted the man of perjury; a decision which led to massive public objection and a demand to clarify the law in conjunction with the recent United Kingdom reform.  In December of 2006, New South Wales reconstructed the state's double jeopardy law and currently allows for the retrial of cases in which the minimum sentence is 20 years or more.  In October of 2007, the state of Queensland reformed their double jeopardy laws corresponding with New South Wales for crimes carrying a sentence of 25 years or more.  However, the new reform was met with less enthusiasm as seen in the UK and New South Wales, as Queensland's change did not happen as the result of a tangible case.    

A TIME FOR CHANGE IN THE UNITED STATES
The Constitution of the United States was written back in 1787 as a legal document establishing a foundation for our country, government, and all related entities.  Among the first ten Amendments to the Constitution, otherwise known as the Bill of Rights, a portion of the Fifth Amendment occurs pronouncing that no person shall be held accountable for the same crime twice and be put in jeopardy of life or limb.  This clause is interpreted as sort of a "checks and balances" for legal procedure, protecting every American from possible harassment by the prosecution and multiple punishments for the same crime.  It is a wonderful concept that has seen many prior defendants through to better times.  However, it is a concept that is almost 800 years old.  In the United States, we believe that it is wrong to live in fear of ongoing personal and financial pain that can be involved in the processes associated with our legal system.  Advocates of the double jeopardy clause go on to say that the benefits of having such procedure greatly outweigh the losses.  They claim that it forces prosecutors and the police department to put forth the best case possible in the initial trial.  Without double jeopardy, prosecuters could continue to retry a case until they reach the verdict that they prefer.  They also claim that without double jeopardy, the trust that Americans put in jurors would be forever lost, as it would open a door to "second guessing" our appointed public servants. 

As a self proclaimed victim rights advocate, I have one request to those who support the current double jeopardy provision, "Open your eyes and your mind to what I am about to propose!"  I am not asking that the double jeopardy passage be forever stricken from our Constitution.  It is a necessary part of our legal process.  However, the concept needs to be updated in accordance with ongoing advancements in science and technology.  It is absurd to allow a rapist to walk free to rape again when we now have the technology of DNA testing simply because we have not considered the importance of evolving the logistics of our legal system along with rest of the advancements that are made in the progression of life.  If our Founding Fathers had known that we would have the future ability to conclusively identify a criminal through DNA testing, they surely would have applied this asset to the very authority that seeks justice for those who are unwillingly obstructed from their pursuit of life, liberty, and happiness; especially when the asset itself helps to protect these rights and liberties that are ensured to all Americans and are to be forever secured by the United States Constitution.  While it is justified that a person should not live their life in fear of continuous legal aggravation, we can reform the way in which we interpret this clause to only allow the possibility of a retrial when "new" and "conclusive" evidence emerges.  This would only allow for retrial in extremely rare incidents in which a person can be compellingly re-suspected through new DNA evidence, untampered photography, untampered video, etc...  By strictly limiting the circumstances necessary for re-trial, the minds of the wrongfully accused can remain at peace and only leave those who know that they escaped justice to forever live in fear.  The decision for a new trial would lie in the hands of the Appellate Court and the requirement of evidence would be so indisputable and rare that the prosecution and police department would continue to be held to the highest standard to bring forth the best case possible from the beginning.  As far as the jury is concerned, it is unreasonable to assume that juries do not second guess themselves everyday about cases for which they are given the responsibility to decide whether to convict or acquit a person.  We must remember that juries may have made determinations about guilt or innocence from the evidence that they were presented.  The true injustice would be for a jury to have to go through life second guessing their decision once concrete new evidence surfaces post trial that would have changed the outcome of their decision.

In light of whether you advocate or oppose the current interpretation of the double jeopardy clause, I think it's important to remember that a victim's family has to continue through life with the constant possibility that the convicted could be granted an appeal and retrial.  Or as in the case of Brenda Schaefer, they have to live with the constant realization that the acqitted will never be held accountable for his crime.  While victim's rights should be equal to those convicted, our current judicial system is not set up that way.  You can help change that by supporting the reform of the double jeopardy clause.  We must remember that these victims may not be alive to defend this right for equal treatment under the law and therefore it is our responsibilty as a nation to secure these rights and liberties for future generations to come.  Once you are gone, it'll be too late for your voice to be heard.  Put yourself in Brenda Schaefer's shoes for a moment.  Now, put yourself in the position of her family members.  Remember, just because this injustice didn't happen to you or a member of your family, does not mean that it couldn't.  Now how do you feel about it? 

*The acquitted defendant in the murder of Brenda Schaefer met his maker in September of 2008 and is currently serving a different kind of life sentence, not of this earth.   


REFERENCES:

http://www.academon.com/lib/paper/53555.html

http://caselaw.lp.findlaw.com/data/constitution/amendment05/02.html

http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Magna_Carta

http://en.wikipedia.org/wiki/Double_jeopardy

Did you know these things about the Fifth Amendment to the U.S. Constitution?
1.  The double jeopardy law allows a person who is acquitted of a crime to never ever be re-tried for a case even if photographs, video, or conclusive DNA evidence is found proving their guilt!!!

2.  The double jeopardy law was first cited in the Magna Carta, which was an English document dating all the way back to 1215.

3.  In the past 6 years, other countries such as Australia and England (which came up with the ideals of double jeopardy), have re-written their double jeopardy laws to update them with advancements in science and technology.

4.  There are reported cases of previously acquitted rapists, sex offenders, child molesters, and murderers in which photography, video, and DNA evidence has been found proving their guilt and they will get away with their crimes.

5.  The double jeopardy law allows for a sexual predator, rapist, and murderer to stand in court after being acquitted of a particular crime, and look a victim's family in the eye and admit that they did in fact, torture and kill their loved one...  and all they can be charged with is perjury.

6.  The double jeopardy law allows for these criminals the opportunity to commit future rapes, molestations, and murders.

We can take these criminals off the streets by re-writing our constitution to include new and compelling evidence as a means to re-try these criminals.