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Double jeopardy bars retrial where judge directed verdict based on erroneous view that state failed to prove an element that was not really an element

Evans v. Michigan, USSC No. 11-1327, 2/20/13

United States Supreme Court decision, reversing People v. Evans, 491 Mich. 1, 810 N.W.2d 535 (2012)

A trial judge entered a directed verdict of acquittal in favor of Evans after concluding the state had not provided sufficient evidence of a particular element of the offense. A state appellate court later ruled that the unproven “element” was not actually an element at all and thus ordered a retrial. Relying on precedent starting with Fong Foo v. United States, 369 U. S. 141, 143 (1962)—which recognized that the Double Jeopardy Clause bars retrial following a court-decreed acquittal even if the acquittal is “based upon an egregiously erroneous foundation”—the Supreme Court holds that Evans’s cannot be retried:

Our cases have applied Fong Foo’s principle broadly. An acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e.g., Fong Foo, 369 U. S., at 143, or forgoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U. S. 462, 467–468 (2005) (collecting cases). And an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U. S. 54, 68–69, 78 (1978); a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U. S., at 473; or a “misconstruction of the statute” defining the requirements to convict, [Arizona v.] Rumsey, 467 U. S. [203,] 211 [(1984)]; cf. Smalis v. Pennsylvania, 476 U. S. 140, 144–145, n. 7 (1986). In all these circumstances, “the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U. S. 82, 98 (1978) (internal quotation marks and citation omitted). (Slip op. at 4).

The Court also reaffirms its cases defining “acquittal” to encompass any substantive ruling relating to the ultimate question of guilt or innocence (Scott, 437 U.S. at 98; Burks v. United States, 437 U. S. 1, 10 (1978); United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977)) as well as the importance of distinguishing such substantive rulings from procedural rulings that may also terminate a case mid-trial but which are unrelated to factual guilt or innocence (like an error with the indictment or pretrial delay). The distinction is critical because “the law attaches particular significance to an acquittal,” Scott, at 437 U.S. at 91, so “a merits-related ruling concludes proceedings absolutely.” (Slip op. at 5).

There is no question the trial court evaluated the state’s evidence against Evans and determined that it was legally insufficient to sustain a conviction, for the trial court acted under a state rule requiring a directed verdict of acquittal on any charge on which the evidence is insufficient. (Slip op. at 6). Thus, the ruling was not a dismissal on a procedural ground unrelated to factual guilt or innocence; it was a determination that the state had failed to prove its case. That means Evans was acquitted, even though the trial court’s ruling was predicated on a clear misunderstanding of what facts the state needed to prove. (Id.).

State v. Turley, 128 Wis. 2d 39, 47-50, 381 N.W.2d 309 (1986), followed the precedent reaffirmed by Evans, and concluded “it is clear that federal constitutional law treats mislabeled or erroneous rulings as acquittals when those rulings resolve factual elements of the offense and that these de facto acquittals bar appeal by the state when new trials would be necessitated. It is further clear that even if the circuit court based its ruling on an erroneous standard of review, as the State argues in this case, double jeopardy precludes an appeal by the state if the ruling of the court resolved factual elements of the offense in Turley’s favor.” To the extent there was any doubt about whether Turley’s reference to “factual elements” covered an element mistakenly read into the offense, Evans removes the doubt.

At first glance  Evans appears to be of limited significance, as it reaffirms and relies on a long line of precedent. But the decision is noteworthy in several respects. First, the Court specifically rejected, as inconsistent with its precedent, the state court’s conclusion that because an element was mistakenly added, the trial court had not resolved any factual elements necessary to establish the crime; therefore, there was no acquittal, just an error of law unrelated to guilt or innocence on the elements of the offense. (Slip op. at 7).

The Court also rejects the suggestion that Evans could not complain about the error because he invited it. The Court recognizes most judgments of acquittal result from defense motions, so finding a waiver of double jeopardy protection whenever a trial court error in his favor on a midtrial motion leads to an acquittal “would undercut the adversary assumption on which our system of criminal justice rests, and would vitiate one of the fundamental rights established by the Fifth Amendment.” (Slip op. at 12, quoting Sanabria, 437 U.S. at 78). Likewise, the majority rejects the dissent’s suggestions that defense counsel “fooled the judge,” noting that counsel presented a colorable legal argument based on the persuasive authority of Michigan’s own criminal jury instructions, which, at the time, supported his position. (Slip op. at 12).

Finally, the Court rejected the government’s request to reconsider its precedent. (Slip op. at 14). There is no reason to believe the existing rules have become so “unworkable” as to justify overruling precedent, the logic of the cases still holds, and the states (and the federal government) can prevent this sort of situation, as nothing obligates them to afford its trial courts the power to grant a mid-trial acquittal or to defer consideration of a motion to acquit until after the jury returns a verdict (sometimes done in Wisconsin). As the Court says, “having chosen to vest its courts with the power to grant midtrial acquittals, the State must bear the corresponding risk that some acquittals will be granted in error.” (Slip op. at 16).

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