The case, Evans v. Michigan, involves a defendant who faced charges under a state statute criminalizing “burning other real property” for allegedly setting a vacant building ablaze. The trial judge in the case mistakenly ruled that the government was required to prove, among the elements of the crime, that the burned house was not a dwelling.
Based on that error, the court granted the defendant’s motion for a directed verdict and entered an order of acquittal.
The prosecution appealed, but the defendant argued that the case could not be retried because double jeopardy had already attached.
The Michigan Court of Appeals reversed the verdict, holding that an actual acquittal occurs, for double jeopardy purposes, 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’s error prevented that resolution, double jeopardy principles did not bar retrial.
The Michigan Supreme Court agreed, and affirmed. The U.S. Supreme Court granted certiorari.
‘A final determination’
University of Michigan Law School professor David A. Moran argued that the Court’s precedents give strong protections to acquittals.
“A judge’s final determination that a defendant is not guilty is a final determination of an acquittal for double jeopardy purposes, even if that determination is wrong as a matter of law or as a matter of fact,” Moran said.
Justice Anthony M. Kennedy asked if a judge makes a mistake – and is persistent in that mistake – “there’s nothing the government can do?”
Moran said that the prosecution can try to rectify the error before resting its case. A ruling made after the prosecution’s case is made “is an acquittal, for double jeopardy purposes,” he said.
Justice Ruth Bader Ginsburg asked if such a blanket rule would encourage defendants to mislead judges as to the elements of a case.
“It was the defendant that led the trial judge into error,” Ginsburg pointed out.” The trial judge didn’t come up with it on his own.”
As Moran began explaining that model jury instructions in the statute supported the judge’s interpretation, Justice Antonin G. Scalia jumped in to help him rebut Ginsburg’s point.
“Counsel often encourages judges to do the wrong thing,” Scalia observed. “In every case, there is one of the two counsel urging the court to do the wrong thing, right? That’s what the adversary system consists of.”
Chief Justice John G. Roberts Jr. raised the issue of fairness.
“The government gets one fair shot at conviction, “Roberts said. “If there has been a legal error below, they haven’t had a fair shot.”
“I would respectfully disagree,” Moran said. “Mr. Evans was hauled into court by the state [and] acquitted.”
Agreeing to disagree
Timothy A. Baughman, chief of Research, Training, and Appeals at the Wayne County Prosecutor’s office in Detroit, argued that the defendant should not be allowed to benefit from his own misdeeds.
“A retrial is permissible unless the government has achieved the first harm by the back door by goading the defendant into the mistrial,” Baughman said, emphasizing that in this case, “the defendant asked the judge to terminate the trial without going to a jury.”
“So if the judge did this on her own, that would have been OK?” Scalia asked.
“Correct,” Baughman said.
“So we have to decide in each case whether the defendant initiated the error?” Scalia pressed. “What if the defendant just agrees with the judge [and] says: ‘Yeah, that seems like a good idea.’ Is that enough?”
“I think that would be enough,” Baughman said.
“Well, my goodness, disagreement would be malpractice, wouldn’t it?” Scalia said.
Curtis E. Gannon, assistant to the solicitor general arguing as amicus in support of Michigan, offered an alternative.
“We believe the Court can resolve this case by distinguishing between the misconstruction of an element and the erroneous addition of an element to the case,” Gannon said.
Ginsburg wasn’t sure that solved the problem, since misconstruction and error are in the eye of the beholder.
“I think this characterization – a nonexistent element or a court’s misconception of an element – I think in many cases you could call it one or call it the other,” Ginsburg said. “So that’s a difficult line to adopt.”
A decision is expected by the end of the term.