THE LAW IS A ASS #320: PETER’S GUNNING FOR THE FIFTH
When I was younger, so much, much, much younger than today, there was a television show. Then, when I was a little older, they added a second channel and we got a second show. Eventually that led to four channels and lots more shows. One of those shows was Peter Gunn.
Peter Gunn was a private eye show that aired on NBC then ABC from September 22, 1958 until September 18, 1961. It starred Craig Stevens as the eponymous P.I. and is probably best remembered for its jazz sound track and the theme song written by Henry Mancini. Even if you’ve never seen an episode of the show, I’ll bet you’ve heard the theme song.
I’ll also bet you don’t think I’m here to write about a TV theme song. There, you’d be correct. I’m here to write about the show. Specifically, Season 1, Episode 28, the April 6, 1959 episode, “Pay Now, Kill Later.”
The episode started with a SPOILER WARNING. Okay, it didn’t start with a spoiler warning. Like many episodes of Peter Gunn did, it started with a murder. It didn’t continue with a Spoiler Warning, either, but I have to. Because in order to discuss the legal ramifications of the episode, I have to give away details of the plot including its ending. So here goes.
John Abbot played a scientist who discovered a new miracle fabric in Manchester, England in 1945. But Abbot didn’t want to share the expected profits of this miracle fabric with his business partner played by Torin Thatcher. So Abbot hired a man who looked a little like him to be a caretaker of the textile mill he and Thatcher owned. Abbot tricked the man into wearing Abbot’s clothes then knocked him unconscious, left the man on the floor of the textile mill, and blew it up. All to frame Thatcher. Thatcher was convicted of insurance fraud for blowing up the mill and manslaughter in his partner’s “death.” (That’s what the show said, manslaughter. Personally, I don’t know why it wouldn’t have been felony murder or even premeditated murder, but I didn’t get a chance to ask the show, what with it being a TV show and rather nonresponsive and all.)
Fourteen years later, Thatcher was released from prison. He had always suspected that John Abbot wasn’t dead and had English detectives trace Abbot to America. Thatcher came to America and hired Peter Gunn to track down Abbot. Abbot had changed his name and was now the successful head of his own textile firm, but Gunn tracked him down anyway.
When Gunn reported to Thatcher, Thatcher revealed his real purpose; he wanted to kill Abbot for ruining his life. He said he wasn’t worried because, he’d already been convicted of killing Abbot and under the Double Jeopardy Clause of the United States Constitution, he couldn’t be tried for the same crime – killing Abbot – a second time.
Gunn and his police liaison – back then all TV P.I.s had police liaisons just like all sit-com families had wacky next-door neighbors – Lt. Jacoby learned that Abbot was going to exhibit at a fabric show which was conveniently in the same unnamed river front city where Gunn operated. They went to the show to arrest Abbot for murdering the caretaker. But Thatcher also showed up with a gun so he kill could kill Abbot. Gunn and Jacoby tried to talk Thatcher out of this. While they did this, Abbot threw a bolt of cloth at them and bolted himself.
A gunfight ensued, as it did so often in Peter Gunn and virtually every other TV P.I show of the era. Abbot, who had his own gun, shot at Gunn and Jacoby. Jacoby and Gunn shot at Abbot. Then Abbot ran out of bullets and, rather than characteristically throwing his gun at Gunn, just tried to make a break for it. That’s when Thatcher shot and killed Abbot. Thatcher surrendered to Jacoby and Gunn said, “It should make an interesting trial.”
Not really. It would have been a pretty straight forward trial. Thatcher killed Abbot in front of a respected P.I., a police lieutenant, and several other eyewitness; including the, in the 50s, stereotypical screaming woman. And Thatcher had no defense.
He had no defense under Double Jeopardy Clause of the Fifth, because it didn’t apply to his case. As Gunn and Jacoby pointed out, the Double Jeopardy clause commands that a man cannot be tried for the same crime two times. But Thatcher’s killing of Abbot wasn’t the same crime. After being framed, Thatcher had been convicted of killing Abbot in Manchester, England back in 1945. That wouldn’t apply to his actually killing Abbot in America in 1959. To quote the show’s accurate statement, “It’s a new and separate crime. Another time, another place.”
Nice to know that this low-budget half-hour TV show from 1959 managed to get the law correct, considering Double Jeopardy, the big budget 1999 movie starring Tommy Lee Jones and Ashley Judd, with basically the same premise got it all wrong. Repeatedly.
See Double Jeopardy doesn’t actually apply to the crime charged, that is what penal code violation was committed – in this case murder. Double Jeopardy applies to the criminal act that was committed. If you kill a man in 1945 that’s one criminal act. If you kill a man in1959, that’s a separate criminal act. You may get charged under the same statute, but you’ve committed two distinct and different criminal acts. You haven’t committed the same crime, you’ve violated the same statute two different times.
Even if the victim of both crimes happens to be the same man, because you didn’t really kill him the first time around, it doesn’t matter; it’s still two distinct acts and two distinct crimes for which you can be prosecuted two distinct times. Oh, you may be able to sue for wrongful imprisonment for the first murder prosecution, as you obviously didn’t commit that murder, what with the purported victim being alive and all. But you’d be enjoying your money in prison after being convicted of the second murder.
Suppose Baby Face Braunschweiger and the Light Fingered Five Minus Two rob the Frostbite Falls Bank in 1961, then are caught and convicted. Does that mean that, after they’re released, they get to rob the Frostbite Falls Bank any time they like with impunity, because they’ve already been convicted of that crime? No. They have been convicted of the crime once, but each time they rob the bank, they’re committing a new act. They may be breaking the same law, but they’re breaking it a second or third or fourth time. Even under Double Jeopardy, they can be prosecuted a second or third or fourth time. One prosecution for each new criminal act they commit.
And, in case you were wondering, because I said “Thatcher has no defense,” Thatcher can’t use self-defense in his trial, either. Yes, Abbot had been shooting at him and Gunn, and Jacoby. But there are two problems with him using self-defense. First, you can’t use self-defense if you are responsible for putting yourself in jeopardy in the first place. You can’t start a bar fight with someone then, when your opponent hits you back, get to claim self-defense when you hit him back for hitting you back. When Thatcher confronted Abbot with a gun and said he intended to kill Abbot, he initiated the confrontation. In this scenario, Abbot would be able to shoot at Thatcher in self-defense, but Thatcher wouldn’t be able to shoot back.
Second, when Thatcher shot Abbot, Abbot was out of bullets and running away. At that point, he no longer presented an immediate threat of bodily harm that necessitated any defense. So, again, self-defense wouldn’t apply.
I offer this week’s column as a public service. If you’re thinking of framing yourself for a murder that didn’t happen so that you can be convicted and go to prison, in the hopes that years later, you can then murder the still-living victim for real and not be prosecuted because of Double Jeopardy; don’t. That defense won’t work.
Insanity, on the other hand…
Re self-defense, I am absolutely baffled when what you just said does not seem to apply in real life. How can somebody with a firearm initiate a confrontation against an unarmed person, who then fights back, and then claim he was in fear for his life so it was acceptable to kill the now-assailant?
How can any judge listen to this defense and not throw it out on the basis of bovis fimus?