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    Why The Case In "Rectify" Against Daniel Holden Isn't Double Jeopardy

    And why it's also incredibly rare.

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    After Monday night's two-hour premiere of Sundance Channel's compelling new series Rectify, viewers will definitely have some significant lingering questions. How will Daniel Holden (Aden Young) cope back in his home town after 19 years on death row for the rape and murder of a teenage girl? Will his family be able to make sense of Daniel's compounding eccentricities? When will someone find the body of the man who seems to have played a role in that poor girl's death?

    But perhaps most pressing of all: How can Daniel still be considered the prime suspect for the girl's murder if he was released from prison based on DNA evidence? Wouldn't retrying him for that crime amount to double jeopardy?

    In a word, no.

    "If you go to trial in front of a jury and you're found not guilty, that's the end — double jeopardy is attached," says Lara Bazelon, supervising attorney at the Loyola Law School Project for the Innocent. But on Rectify, Daniel's conviction was simply vacated by a judge — he wasn't found not guilty. "Getting a conviction vacated doesn't mean you can't be re-prosecuted," says Bazelon. "The prosecutor has another shot at you. It just means that this particular conviction is invalid." Think of it as a kind of mistrial after the fact. If prosectors wants to attempt to reconvict, "they have to start all over again" with a new trial.

    But actually doing that is where Rectify's story does begin to traverse some rarefied legal ground. On the show, Daniel's former prosecutor, who's now a Georgia state senator, is fixated on retrying Daniel as soon as possible, regardless of the DNA evidence excluding him as the victim's rapist. In real life, however, actually taking someone who's had their sentence vacated back to trial is "not common," according to Bazelon.

    "If it's a reversal based on new evidence," says Alex Simpson, director of litigation at the California Innocence Project, "the legal standard is the new evidence must completely undermine the prosecution's case, and it must point unerringly to innocence." Evidence that strong means the prosecution needs to come up with an equally strong — and brand new — line of argument for guilt. Typically, that involves new evidence. "It would have to be very convincing, very persuasive evidence — like a videotape of him doing it," says Simpson. But the prosecution can also get more creative.

    "What makes these DNA rape cases so interesting is that you would think that most prosecutors, based on that newly discovered evidence, would never try to retry the person," says Bazelon, who is also a visiting professor at Loyola Law School. "Because it's so compelling that the DNA inside of the victim isn't the DNA of the [alleged] perpetrator. But the prosecutor can come up with theories that in my opinion are kind of out there. They'll say something like, 'Well, maybe there were multiple assailants, and some of the assailants didn't ejaculate. And so that's why the DNA testing appears to exonerate this person, but doesn't really exonerate them.' So that could be a potential theory that they have and reason why they would need to re-prosecute."

    Ultimately, it's up to the prosecutors to decide if their case is strong enough — and in the state of Georgia, they have all the time they need. Whereas other states like California place a strict deadline on retrying a case that has been vacated, Georgia places no such limit on murder cases. Which makes it a great place to set a show like Rectify, which is far more concerned about the inner psychological and spiritual lives of its characters than on nitty-gritty procedural details.

    "Oftentimes," says Simpson, "prosecutors will say on the record, to the press, to anybody who's listening, 'Well, we don't believe the person is innocent. And we reserve our right to re-prosecute. We're just not doing it at this time.' The exoneree always has that hanging over their head for the rest of their life. Psychologically, that's a very heavy weight."

    And a potent catalyst for drama.

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