Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?
Lower court opinion (491 Mich 1, 810 NW2d 535 (2012))
The QP efficiently sets up the issue, which has led to a split among the lower courts. Here, the Michigan supreme court denied relief under the following rationale:
Again, an acquittal for double-jeopardy purposes is a “ruling of the judge, whatever its label, [that] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” 57 The trial court’s legal error resulted in its adding an element to the charged offense and requiring the prosecution to provide proof of that extraneous element. As the Court of Appeals concluded, the trial court did not resolve or even address any factual element necessary to establish a conviction for burning other real property. Rather, the substance of the trial court’s ruling was entirely focused on the extraneous element. Consequently, the trial court’s decision was based on an error of law unrelated to defendant’s guilt or innocence on the elements of the charged offense, and thus the trial court’s dismissal of the charge did not constitute an acquittal. 58
Therefore, barring retrial is inappropriate in a case such as this. Because of the trial court’s legal error, no factual elements of the charged offense were considered, and as a result the people have not been afforded the opportunity to have their case reviewed for the sufficiency of the evidence on the factual elements even once. Permitting retrial to allow such an opportunity hardly depicts “an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.” 68 Rather, because the trial court’s actions fell outside the definition of acquittal, permitting defendant’s retrial does not frustrate the prohibition against double jeopardy.
Just a few years ago, the Supreme Court held that an acquittal ruling, even if clearly wrong, barred further proceedings. Smith v. Massachusetts, 543 U.S. 462, 465, 473 (2005) (“But any contention that the Double Jeopardy Clause must itself (even absent provision by the State) leave open a way of correcting legal errors is at odds with the well-established rule that the bar will attach to a preverdict acquittal that is patently wrong in law.”). The lower court appeared to have applied a different principle: to operate as an absolute bar, the ruling must actually resolve one or more of the offense elements; this ruling merely resolved a non-element, therefore didn’t terminate jeopardy.
Echoes may be heard (how distantly, is hard to say) in the “law of the case” problem, State v. Beamon, 2011 WI App 131, rev. granted 4/25/12. (Beamon’s argument: “Sufficiency of the evidence has traditionally been reviewed in the context of the instructions given in the case. … This doctrine follows from the rule that any unobjected to errors in jury instructions are waived. In criminal cases this means the state may face an increased burden of proof.”)