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It's been said that the recent re-arrest of an FBI informant on the same charges is "unprecedented", in particular because it was done by going to a different judge than the original magistrate who released him, so a form "judge shopping" for the government's preferred result, if you like.

I've tagged this with double jeopardy, but arrests are--of course--not trials or convictions. So, is what happened in this case undoubtedly legal, at least from this angle? (And also/conversely, is it really "unprecedented"?)

The reason for the first release was that he was not considered a risk to the community and paraphs only a moderate flight risk (his passport was retained). The 2nd judge apparently disagreed on the latter, but the reporting was much less clear on that.

Looking for loopholes
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2 Answers2

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In the United States, Double Jeopardy attaches when:

A.) In jury trial when the jury is empaneled and sworn in

B.) In a bench trial when the court begins to hear evidence after the first witness is sworn in

C.) When a court accepts a defendant's plea unconditionally.

In the Criminal Justice system, an arrest always occurs before the trial, so an arrest of someone who was charged but had charges dropped is possible (You could arrest someone for a murder, find out that the evidence doesn't exist to prosecute, release, develop more evidence and rearrest again and not violate it.).

What it looks like here is that the defendant was arrested, brought in for arraignment and had a bail set, only to have a judge take over the case and rule that the bail was not proper and revise the bail conditions (in this case deign bail) in which case the defendant will be arrested and remanded to pre-trial detention. Bail is a guarantee that the defendant will show up for the scheduled trial if not remanded to detention and as such resolves by appearing for your trial, so again, Double Jeopardy does not attach.

hszmv
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Is it legal (but maybe "unprecedented") for the prosecution to "judge shop" to re-arrest someone on the same charges?

It is legal because double jeopardy does not attach and an arrest warrant is not a final order.

It is far from unprecedented for the prosecution to "judge shop". It isn't common, but it has happened on a low frequency basis in select case for forever. It has been happening in the U.S. since the 18th century.

ohwilleke
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