Court's double jeopardy ruling a blow to prosecutors

By Kimberly Atkins
The Daily Record Newswire
BOSTON — The U.S. Supreme Court’s ruling last week that a defendant cannot be retried, even when his acquittal was based on a judge’s blunder, was cheered by defense attorneys.

But others say that the ruling dealt a blow to prosecutors — and to the rule of law — by rewarding a defendant who had a hand in the mistake.

“This is a classic case of invited error,” said William G. Otis, a professor at Georgetown Law, about the case Evans v. Michigan. “It has been the rule of law, part of the common law long before the Constitution, that a party cannot benefit [from] an error that he induces.”

But the defense bar said that the decision not only is supported by precedent but also puts judge-ordered acquittals on the same constitutional footing as jury verdicts.

“A jury can get it wrong, too,” said University of Michigan Law School professor David A. Moran, who represented the defendant at the Supreme Court. “That’s part of what we tried to establish in the case.”

The unusual case stemmed from a criminal trial judge in Detroit who mistakenly believed that the crime of arson had one more element than it actually does under a Michigan state statute.

Defendant Lamar Evans was charged with “burning other real property” for allegedly setting a vacant building ablaze. At the close of the prosecution’s case, Evans’ lawyer moved for a directed verdict, pointing to the applicable state jury instructions for the crime which, he argued, included the element that the structure not be a dwelling. The judge granted the defendant’s motion.

But the Michigan Court of Appeals reversed and remanded. Rejecting Evans’ claim that the Double Jeopardy Clause barred retrial after the directed verdict, the court held that double jeopardy attaches only when the trial court’s action is a resolution of a factual element necessary for a criminal conviction. Because in the instant case the court hadn’t resolved such a factual element, double-jeopardy principles did not bar retrial. The Michigan Supreme Court affirmed.

In an opinion written by Justice Sonia M. Sotomayor, the U.S. Supreme Court reversed, holding that the Double Jeopardy Clause barred Evans’ retrial.

“A mistaken acquittal is an acquittal nonetheless,” Sotomayor wrote for the 8-1 majority.

The judge in the case did base his decision on an evaluation of the facts, and regardless of whether he erred, his ruling amounted to an acquittal, Sotomayor reasoned.

“There is no question the trial court’s ruling was wrong; it was predicated upon a clear misunderstanding of what facts the State needed to prove under State law. But that is of no moment,” Sotomayor wrote.

In his dissent, Justice Samuel A. Alito Jr. stressed that the defendant had a role in the judge’s mistake.

“[H]is attorney managed to convince a judge to terminate petitioner’s first trial prior to verdict on the specious ground that the offense with which he was charged contains an imaginary ‘element’ that the prosecution could not prove,” Alito wrote. “The Court’s decision makes no sense.”

Otis said he had hoped the government would have focused more on the invited error argument in making its case.

“A party cannot benefit from an error that he induces. That is exactly what went on in this case,” Otis said.

But Moran said that the argument, as the majority found, was not persuasive.

“The point is, effective advocacy is a part of a trial,” Moran said. “Effective advocacy can sometimes lead to mistaken acquittals. But I kept coming back to the point that it is the state that bears the burden of proving the case.”

In addition, any concern about hoodwinked judges is not based in reality, Moran said.

“There is not a rash of mistaken acquittals,” he said. “There was not even an amicus brief written by any other state [in this case]. This is not a significant problem.”