Heather Mack is mobbed by reporters as he arrives in the courtroom for her sentencing hearing at a district court in Denpasar, Bali, Indonesia, on April 21, 2015. Mack, who served more than seven years in an Indonesian prison for killing her mother at a luxury resort in Bali has been indicted on federal murder conspiracy charges and taken into custody by FBI agents at O'Hare International Airport in Chicago on Wednesday Nov. 3, 2021. (Firdia Lisnawati, File/AP)
Heather Mack’s attorney says the new federal charges accusing her of conspiring to kill her mother at a Bali resort in 2014 are a clear-cut case of double jeopardy.
But legal experts say not so fast.
Mack, who was convicted of the murder in Indonesia and spent seven years behind bars before her release last week, should be protected under U.S. law from prosecutors trying to take a second bite of the apple, attorney Brian Claypool told the Tribune on Wednesday.
“From a legal perspective there is clearly a federal statute that says you cannot prosecute someone for a crime of they’ve already been convicted of it in another country under the same set of facts,” Claypool said shortly before Mack’s arraignment in U.S. District Court. “This is a clear case of sour grapes. And we are going to fight it.”
Claypool was referring to a federal statute for the murder of a U.S. national on foreign soil, but Mack was not charged under that statute, experts said, and she was charged under a federal murder conspiracy law that does not contain that language. And while much of the conduct laid out in the five-page indictment allegedly occurred overseas, one count does allege that her then-boyfriend Tommy Schafer was still in Chicago conspiring with Mack before he met them in Bali a day before the slaying.
Attorneys who spoke to the Tribune on Wednesday, said any double jeopardy issue is not likely to impede the federal case from moving forward.
The bar against double jeopardy is in the Fifth Amendment to the U.S. Constitution and provides protection against someone being prosecuted twice for the same offense.
The U.S. Supreme Court, however, has ruled that a state crime and a federal crime, both punishing the same act, are different, said Sergio Acosta, a former federal prosecutor now in private practice in Chicago.
Acosta said U.S. Department of Justice policy also requires prosecutors to formally assess whether a “successive prosecution” for the same act or series of acts should move forward.
That policy precludes initiation and continuation of a federal prosecution on substantially the same act unless several prerequisites are satisfied, including that the matter is of substantial federal interest and that the prior prosecution left that interest “demonstrably unvindicated.”
“The key factor in most of these cases is, in my judgment, (is) whether the prior prosecution left a substantial federal interest unvindicated,” Acosta said. “Successive prosecution is a sensitive issue for the DOJ, which is why a successive prosecution must be approved at the highest levels.”
Acosta added that while the policy doesn’t address foreign prosecutions, the same underlying considerations and required approvals would likely apply in Mack’s case.
Other Chicago attorneys agreed that double jeopardy appears to be a difficult challenge for Mack’s legal team, based on the charges.
“There is probably no finding in the other case of any factual or legal issue that is now at issue in the federal charges,” said longtime criminal defense attorney Michael Leonard. While a double jeopardy issue should be at least considered, Leonard said a more viable defense could be to challenge jurisdiction.
“They committed a crime on foreign soil,” Leonard said. “What is the connection to the United States? I think that is a much stronger argument.”
Claypool said he will argue the U.S. government had an opportunity to try to extradite Mack from Indonesia and try her here for the murder, but they chose to let the process play out overseas instead.
“They elected to defer to Indonesian authorities. They respected the Indonesian government enough to have her tried there, and not only that, they went further and actually worked behind the scenes to lend expertise and help obtain a conviction of Heather,” Claypool said.
Records in the cases show it is true that the FBI, which has an office in the U.S. Embassy in Jakarta, Indonesia, was involved in the slaying investigation from the onset.
Besides ensuring that the victim’s remains were flown back to the United States, federal agents assisted Bali police with technical support related to texts and emails on phones and computers that belonged to the victim and defendants.
But the investigation was also on a different track than in Bali, and for different offenses.
According to a search warrant and affidavit filed in October 2014, authorities were considering possible charges related to the foreign murder of a United States national, though none were filed at the time.
The U.S. investigation remained active even after Mack and Schaefer were convicted and sentenced in Bali. In 2015, the Tribune reported that federal authorities flew Indonesian law enforcement officials to Chicago at least twice to answer questions as part of the ongoing investigation.
And as recently as 2017, the U.S. attorney’s office in Chicago filed a search warrant seeking to search Mack’s iPhone, which was confiscated after her arrest in Bali but remained locked because she refused to give investigators her password, court records show.
The phone had remained in the custody of Indonesian authorities until December 2016, when it was turned over to the FBI in Jakarta and later brought to Chicago.
The warrant for the phone stated the FBI was actively investigating whether “additional people” were involved in the murder conspiracy.
Mack and Schaefer were indicted four months later, but the charges remained under seal until her return to the U.S. on Wednesday.
jmeisner@chicagotribune.com
asweeney@chicagotribune.com
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