U.S. Supreme Court says that Double Jeopardy Clause prevents retrial when trial judge erroneously granted acquittal at Defendant's first trial

February 21, 2013 by Paul Kish

Both in federal criminal cases here in Atlanta and around the country, as well as in the state court proceedings we handle throughout Georgia, we occasionally deal with issues relating to "Double Jeopardy," the portion of the Fifth Amendment that says prosecutors only get one bite at the apple. Yesterday, by a 8-1 vote, the United States Supreme Court continued to protect all of us against multiple prosecutions by holding there cannot be a second trial even when the judge made a mistake by erroneously granting an acquittal to the Defendant in the first trial. The case is Evans v. Michigan.

Mr. Evans was accused of setting a building on fire. One Michigan law makes it a crime to burn a dwelling, while a second law makes it a crime to burn "other real property." At the close of the evidence, the Defendant's lawyer pointed to standard jury instructions which require proof that the property was a "non-dwelling" before a person could be convicted of the crime of burning "other real property." The trial judge, noting that the property owner said the building WAS a dwelling, granted an acquittal for the Defendant because the prosecution had failed to prove the property was NOT a dwelling. It turns out the trial judge was completely wrong, in that burning "other real property" is a lesser-included offense of the greater crime of burning a dwelling. The prosecution appealed, and Michigan's appellate courts decided that a second trial was OK, even despite the protections from the Double Jeopardy Clause.

The U.S. Supreme Court reversed, holding that retrial following a court-decreed acquittal is barred, even if the acquittal was based upon an egregiously erroneous foundation. An "acquittal" includes any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. This is different from procedural rulings, which lead to dismissals or mistrials for reasons unrelated to factual guilt or innocence. An acquittal is a substantive ruling that concludes proceedings absolutely, and thus raise significant Double Jeopardy concerns. Here, the trial court clearly evaluated the prosecution's evidence and determined that it was legally insufficient to sustain a conviction. While the acquittal was the product of an erroneous interpretation of governing legal principles, that error affects only the accuracy of the determination to acquit, not its essential character.

Along the way, the Supreme Court addressed the prosecution's argument that Mr. Evans got a "windfall", and he should not get the benefit of a real bonehead ruling by the trial judge. The U.S. Supreme Court was unimpressed, noting that States and the federal government have the power to prevent such situations by disallowing the practice of midtrial acquittals, encouraging courts to defer consideration of a motion to acquit until after the jury renders a verdict, or providing for mandatory continuances or expedited interlocutory appeals. The bottom line: the Double Jeopardy Clause remains intact as one of the bulwarks protecting individuals from multiple prosecutions, even when the first case was erroneously decided against the prosecution.

Some of the recent cases also reminded me of a medical doctor I represented who got caught up in the post 9-11 laws that criminalize lots of innocent conduct. One of those laws (18 United States Code, section 1038) makes it a crime to make a false report of something, which if it was true, would be a terrorist act. Through a series of mishaps, the doctor was pulled off a plane, but they would not remove his luggage, and planned on sending the flight along without him but leaving his bags on board. He complained, explaining that was stupid, in that for all they knew, his bags could contain explosives. That was not a smart thing to say, but it also was not a crime, in my estimation. Over the course of several years, I filed hundreds of pages of legal motions challenging the statute, and argued that the doctor had a First Amendment right to make a truthful statement: it is stupid to allow a passenger's bags to remain on a flight when the passenger himself is no longer one of the passengers. After lots of work, we eventually convinced the prosecutors to drop all charges. The incident still pops up from time to time when the doctor's medical license is up for renewal, but every time it has we convinced the regulatory bodies that he did nothing wrong.

The federal authorities like to make criminal cases when activities take place on airplanes. I probably will see more of these in the years ahead.