Cite as: 518 U. S. 81 (1996)
Opinion of Souter, J.
that the state court system had malfunctioned when the petitioners were acquitted (or, in the case of one charge, had received no verdict), and without something more one cannot accept the District Court's conclusion that there was no demonstration that a "clear miscarriage of justice" caused the result in the state trial. 833 F. Supp., at 790. This is so simply because the federal prosecutors, in proving their cases, proved conduct constituting the crimes for which petitioners had been prosecuted unsuccessfully in the state court. See Powell v. Superior Court, 232 Cal. App. 3d 785, 789, 283 Cal. Rptr. 777, 779 (1991) (noting that petitioners were charged, inter alia, with assault by force likely to produce great bodily injury, Cal. Penal Code Ann. § 245(a)(1) (West 1988), and being an officer unnecessarily assaulting or beating any person in violation of § 149); § 149 ("Every public officer who, under color of authority, without lawful necessity, assaults or beats any person" commits an offense); § 245(a)(1) ("Every person who commits an assault upon the person of another . . . by any means of force likely to produce great bodily injury" commits an offense); ante, at 87-88 (observing that petitioners were tried in state court for assault with a deadly weapon and excessive use of force by a police officer and tried in federal court for willfully using or willfully allowing others to use unreasonable force in arresting King); 833 F. Supp., at 790 (stating that the "same underlying conduct" was involved in both cases). While such a facial showing resulting from the identity of factual predicates for the state and federal prosecutions might in some cases be overcome (by demonstrating, say, that a crucial witness for
are brought each year and that from March 1977 to September 1980 only seven successive prosecutions were authorized); United States v. Davis, 906 F. 2d 829, 832 (CA2 1990) ("In practice, successive prosecutions for the same conduct remain rarities"). Those figures do not, however, demonstrate that all convictions on successive federal prosecutions under 18 U. S. C. § 242 should for that reason be subject to discretion to depart downward, for they do not take account of the normative ordering, discussed below.
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