Today marks the 80th anniversary of the devastating Supreme Court case of Palko v. Connecticut in which the Supreme Court held that the 5th amendment right against Double Jeopardy did not apply to state courts. While Palko was eventually overturned by the landmark case of Benton v. Maryland, Palko stood for 32 years as an impediment to Constitutional rights.
The case behind Palko perhaps explains the Courts dim view. Late one evening in 1935, Frank Palko broke into a music store in Fairfield County Connecticut , stole a phonograph and fled the scene on foot. Mr. Palko was quickly cornered by a police officer who he shot and killed. Mr. Palko remained at large for a month before he was finally captured. Mr. Palko was brought to trial on one count of first degree murder. At the time, Connecticut had the death penalty for first degree murder. Mr. Palko was found guilty by a jury of second degree murder and sentenced to life in prison. At the time in Connecticut, the State could appeal a verdict, which the State did.
On appeal, the Connecticut Supreme Court of Errors (Now Connecticut Supreme Court) reversed the convictions because the trial court had erred in allowing a specific jury instruction on the definition of second degree murder, suppressing a confession that Mr. Palko had made, and refusing to allow the State to cross-examine Mr. Palko on the witness stand. Thus, Mr. Palko’s conviction was overturned, and he was tried again on the same count of first degree murder. This time Mr. Palko was found guilty of first degree murder, and sentenced to death.
Mr. Palko appealed his second conviction arguing that the Connecticut court had violated the 5th amendment prohibition against Double jeopardy by trying him again for the same crime. The Connecticut Supreme Court of Errors disagreed and affirmed his conviction because the State had been denied a fair trial originally. Mr. Palko then sought a writ of certiorari from the Supreme Court in early 1937 and granted cert in mid-1937.
The Supreme Court heard arguments on November 12th, 1937. Mr. Palko once again argued that his 5th amendment right against Double Jeopardy should be applied to the State via the 14th amendment.
The State argued that the 5th amendment right against Double Jeopardy should not be applied against the states. Further the state argued that they had been denied a fair trial originally, and as such Mr. Palko was never in jeopardy in the first case.
The Supreme Court rendered its verdict on December 6th, 1937. In an 8 – 1 decision, the majority led by the revered Justice Benjamin N. Cardozo held that 5th Amendment Due process clause only protected rights “of the very essence of a scheme of ordered liberty”. As such, the majority held that Bill of Rights would be incorporated against the states, one by one on a case by case basis, if the right to be incorporated met the test of 5th amendment protection. The Court held that the State is entitled to a fair trial as well, and had been denied one in the original case. The Court then found that Mr. Palko’s 5th amendment right against Double Jeopardy was not “an essential scheme of ordered liberty”, and upheld his conviction and condemning him to death. The lone dissenting Justice Pierce Butler did not write his own opinion.
With his conviction upheld, Mr. Palko was executed by the electric chair on April 12th, 1938. While Palko was a devastating decision by the Supreme Court, the holding was eventually overturned by Benton. Thankfully, today the 5th amendment right against Double Jeopardy is protected. With Experienced Legal Representation, you can insure your constitutional rights are protected.
Written by Hunter J. White
 Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149 (1937)
 Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056 (1969)
 According to Howard Ball, Palko is actually a spelling error, and his real name is Mr. Palka. Ball, H. (2002). The Supreme Court in the Intimate Lives of Americans: Birth, Sex, Marriage, Childrearing, and Death. New York, N.Y.: New York University Press. (page 13)