DePape Faces New State Charges, Defense Argues Double Jeopardy

San Francisco prosecutors have added charges on the eve of trial that increase the severity of a potential state-prison sentence for the man who violently attacked former U.S. House speaker Nancy Pelosi’s husband with a hammer, as local public defenders argue that several charges against David DePape should be dismissed because they illegally repeat a federal prosecution concluded late last year.

DePape was sentenced last week to 30 years in federal prison following his November conviction of attempting to kidnap Nancy Pelosi and violently assaulting her husband, Paul Pelosi, during a politically-motivated, late-night break-in at the couple’s San Francisco home in late 2022. The two charges in federal court relied on DePape’s targeting of Nancy Pelosi because of her official position as a U.S. representative.

However, a court error at his federal sentencing hearing has called that 30-year prison term into question and added disorder to the already complex dual prosecution on both federal and state-level charges.

A second trial — this one in state court — is set to open next week. DePape faces multiple charges, including attempted murder, first-degree burglary, assault with a deadly weapon, seriously injuring an elderly adult, false imprisonment and threatening a public official’s family member.

Prosecutors recently added two new charges. One of them, aggravated kidnapping resulting in bodily harm or death, carries with it a life sentence without the possibility of parole. The other adds one count of preventing or dissuading a witness by force or threat. DePape has pleaded not guilty to all charges.

The San Francisco District Attorney’s Office declined to comment.

In a motion filed Tuesday, DePape’s attorneys in the state case argue that California law protects DePape from being tried for crimes stemming from the same acts that led to the conviction in federal court.

“Once judgment was issued in Mr. DePape’s federal case, the government became barred under double jeopardy statutes from prosecuting him on any state charges arising out of the same acts for which he was convicted in federal court,” the San Francisco Public Defender’s Office said in a written statement. “Upon the federal court’s pronouncement of judgment last Friday, our office immediately filed a motion to dismiss the state case based on these statutes.”

DePape’s attorneys argue that California law, specifically two sections of the state penal code, offers greater protection than the double jeopardy clause of the Fifth Amendment.

“DePape’s assault on Mr. Pelosi with a hammer was an act of violence that shocked our country,” the motion said. “So was his forced entry into the Pelosis’ home. The United States has tried, convicted and severely punished DePape for those crimes. California law does not permit a second trial for the same conduct.”

Visiting University of San Francisco law professor Andrew Lah said the legal doctrine of dual sovereignty typically allows the prosecution of a defendant for the same acts in both state and federal court. And he noted a prominent example: the double prosecution of Derek Chauvin following the murder of George Floyd.

“We had a state prosecution under state law for murder charges in that case,” Lah said. “We also had the federal government prosecuting for federal criminal civil rights violations. It all flowed from Chauvin’s conduct of killing George Floyd. That doesn’t violate double jeopardy because even though it’s from effectively the same conduct, the state of Minnesota and the United States of America are separate sovereigns for purposes of the double jeopardy clause.”

However, DePape’s San Francisco public defenders argue that California law provides greater protections against repeated prosecution. They cite two sections of the penal code, one that makes a prior conviction a defense to a new charge stemming from the same acts and another that bars prosecution after a conviction in another court system.

DePape’s sentencing hearing in the federal case has been reopened after U.S. District Judge Jacqueline Scott Corley failed to give DePape an opportunity to speak at his May 17 sentencing hearing. A do-over sentencing is scheduled in federal court on Tuesday.

That same day, a judge in state court will hear arguments over whether some of the charges DePape is facing should be dismissed based on the defense’s motion regarding double jeopardy.