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SCOTUS reaffirms bright-line rule that jeopardy attaches when the jury is sworn

Esteban Martinez v. Illinois, USSC No. 13-5367 (May 27, 2014) (per curiam), reversing State v. Martinez, 990 N.E.2d 215 (Ill. 2013)

In this unanimous per curiam decision, the Supreme Court reaffirms two clear rules of criminal procedure: jeopardy attaches when the jury is impaneled and sworn; and a trial court’s dismissal of the case due to insufficient evidence is an acquittal. Added together, the two rules mean the defendant cannot be retried.

After years of delay, Martinez’s aggravated battery and mob action charges finally went to trial. Though much of the delay was attributable to the defense, the state also sought delays because it hadn’t succeeded in serving the two victims with subpoenas. The state again asked for a brief continuance on the morning of trial, but the court instead forged ahead with picking a jury. The court did, however, put off swearing the jury to give the state some more time to find the victims. The state then filed a written motion to continue, saying it was unable to proceed without the victims and that their whereabouts were unknown. (Slip op. at 2-3).

The court denied the state’s motion and advised it was going to bring in and swear the jury. (Slip op. at 3). In response, the prosecutor advised the court that “the State will not be participating in the trial.” The prosecutor declined to make an opening statement and, when given the opportunity to call witnesses, again advised the court that the state was not participating. Based on the state’s failure to present evidence and its express intention not to present evidence, defense counsel moved for directed verdicts of not guilty. The state—still not participating—declined to reply to the defense motion. The court granted it and dismissed the charges. (Slip op. at 4).

Seeking to retry Martinez, the state appealed. The Illinois Supreme Court concluded jeopardy hadn’t attached despite the swearing of the jury because, given the state’s refusal to participate and present evidence, Martinez “was never at risk of conviction,” 990 N.E.2d at 224. The Supreme Court dismisses that holding: “There are few if any rules of criminal procedure clearer than the rule that ‘jeopardy attaches when the jury is empaneled and sworn.’” (Slip op. at 6, quoting Crist v. Brest, 437 U.S. 28, 35 (1978)). The Illinois Supreme Court misread Serfass v. United States, 420 U.S. 377 (1975), as allowing a “functional” approach for determining whether jeopardy attached, and its error was “consequential” because:

… it introduced confusion into what we have consistently treated as a bright-line rule: A jury trial begins, and jeopardy attaches, when the jury is sworn. We have never suggested the exception perceived by the Illinois Supreme Court—that jeopardy may not have attached where, under the circumstances of a particular case, the defendant was not genuinely at risk of conviction. Martinez was subjected to jeopardy because the jury in his case was sworn. (Slip op. at 8 (footnote omitted)).

Further, there is no doubt that Martinez’s jeopardy ended in a manner that bars his retrial because the trial court acquitted him of the charged offenses. “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal … could not be reviewed … without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). An acquittal is any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. Evans v. Michigan, 568 U.S. ___, 133 S. Ct. 1069, 1074-75 (2013). That is certainly what happened here:

After the State declined to present evidence against Martinez, his counsel moved for “directed findings of not guilty to both counts,” and the court “grant[ed] the motion for a directed finding.” Tr. 21. That is a textbook acquittal: a finding that the State’s evidence cannot support a conviction. (Slip op. at 9).

Thus, the Illinois Supreme Court was wrong to rely on the “immaterial” fact that the court said it was dismissing the charges rather than referring to an acquittal. (Slip op. at 9). Because Martinez was acquitted, the state can’t retry him.

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