ASKED & ANSWERED: David Moran on Evans v. Michigan

 By Steve Thorpe

Legal News
The U.S. Supreme Court ruled 8-1 recently that Michigan cannot retry a defendant whose arson case had been thrown out by a trial judge who mistakenly required state prosecutors to prove more than they needed. The decision in Evans v. Michigan was a victory for defendant Lamar Evans, who had argued that the Constitution’s general prohibition against being tried twice for the same crime, known as double jeopardy, barred a retrial. Prof. David Moran of the University of Michigan Law School represented Evans. In 2009, professors Moran and Bridget McCormack launched the Michigan Innocence Clinic. In its first four years, the clinic’s work resulted in the exoneration of seven people. He has argued six times before the U.S. Supreme Court. 
Thorpe: Give us a quick thumbnail of the facts of the case.
Moran: When I took this case, I knew only the facts that were in the Michigan Supreme Court’s opinion. There was a fire in a vacant house, two Detroit police officers testified they saw Mr. Evans running from the scene carrying a can of gasoline, and he gave an incoherent confession about being a homeless man who set the fire to clear more space. After I got into the case, I read the trial transcript and talked to trial counsel and learned the rest of the story. It turns out Mr. Evans is actually not homeless but lives with his wife and child in Toledo, where he is the pastor of a church. 
After his arrest, Mr. Evans was interviewed by a police arson detective who testified that Mr. Evans explained that he lived in Toledo, he firmly denied having anything to do with the fire, and he didn’t smell of gasoline, which would be remarkable if he had just doused a house with gasoline. Further, Mr. Evans’ prints weren’t found on the gas can. And the neighbor who called 911 to report the fire was going to testify that he saw two men jump into a car and drive off at high speed just after the fire started.  As trial counsel told me, there was little doubt that Mr. Evans was going to be acquitted by the jury if the judge hadn’t granted the directed verdict.
Thorpe: What was the error the trial judge made in granting that directed verdict?
Moran: The judge granted the directed verdict on the legally erroneous ground that to convict Mr. Evans of burning other real property (a lesser offense than arson, which is burning a dwelling house), the prosecution must prove that the building burned was not a dwelling house.  
The judge’s error was entirely understandable because that’s exactly what the standard criminal jury instructions in use at the time said. The instructions were corrected seven months after the trial. But Mr. Evans was unquestionably acquitted by the judge so his case should have been over.
Thorpe: The U.S. Supreme Court has held in the past that legal errors leading to acquittals do not affect the finality of those acquittals. Why did the Michigan Supreme Court disagree this time?
Moran: The prosecution appealed and the Michigan Court of Appeals and the Michigan Supreme Court both held that Mr. Evans could be retried because the trial judge had effectively added an element to the crime.  According to the Michigan Supreme Court majority, all of those prior cases in which trial judges had required the prosecution to prove more than the statute really required were distinguishable because those earlier cases involved judges misconstruing the elements of an offense whereas the judge here added an element to the offense. 
But that’s a meaningless distinction that turns on semantics; you could just as easily say that the judges in all of the earlier cases really added elements and the judge here misconstrued an element (the definition of a structure). 
So when I saw the Michigan Supreme Court’s decision online last March 26, I immediately called up Jonathan Simon, who represented Mr. Evans at that point, and said, “Are you going to take this to the U.S. Supreme Court?” Jonathan invited me to do so, and that’s how I got the case.
Thorpe: Were you surprised at the 8-1 margin? 
Moran: I thought the argument went well, so I wasn’t terribly surprised. It was clear to me that the distinction the Michigan Supreme Court drew wasn’t going to get a majority of the Court, and so the real question was whether the Court would overrule a bunch of its precedents to get the result the prosecution wanted. The problem was that the prosecution’s argument would have required the Court to overrule about 50 years’ worth of double jeopardy precedent, and that’s a lot to ask of the Court. 
I also pointed out that if the prosecution was right, the government should be able to appeal from jury verdicts when the jury is mis-instructed on the elements.
Thorpe: The U.S. Department of Justice supported Michigan’s appeal. What was their stake in the outcome?
Moran: The DOJ would like to be able to get a second bite at the apple whenever a federal defendant is acquitted erroneously so it naturally was interested in the case.
Thorpe: How does this decision affect the concept of “double jeopardy?”
Moran: It really doesn’t.  If I had lost, the Court would have had to overrule a lot of precedent and the double jeopardy protection would have been significantly diminished. 

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