Going into Tuesday’s oral argument in Evans v. Michigan, the central question appeared to be whether Michigan – and the United States, appearing as an amicus in support of the state –would be able to convince the Justices that a workable distinction could be drawn between two kinds of cases:  (1) those in which defendants are acquitted at the close of the prosecution’s case-in-chief based upon the trial judge’s erroneous evidentiary rulings with regard to a required element of the underlying offense; and (2) cases such as this one, in which the trial judge erroneously added an element to the underlying offense, and then entered a directed judgment of acquittal when the prosecution failed to introduce sufficient evidence to prove the wrongly required element beyond a reasonable doubt. The Court has consistently held that the Double Jeopardy Clause of the Fifth Amendment bars retrial in the former context; the Michigan Supreme Court held in Evans that no jeopardy attaches to the “acquittal” in the latter. But if the argument is any indication, the apparent difficulties of administering a constitutional rule that turns on such an elusive – if not illusory – distinction (one which Justice Breyer suggested would yield a “terrible mess”) may well leave the Justices with a far starker and more consequential choice: Allow a small number of criminal defendants to reap windfalls from erroneous rulings that they themselves may have precipitated, or revisit the core principle underlying thirty-five years of double jeopardy jurisprudence.

Arguing for petitioner Lamar Evans, University of Michigan law professor David Moran set that exact tone, suggesting that, although the Court has taken a functional approach to identifying whether trial court dismissals constitute “acquittals” for double jeopardy purposes, the central inquiry animating such analysis is whether, however it is labeled, the trial court’s decision constitutes a determination on the merits that the government failed to prove its case. If so, jeopardy attaches, Moran argued, for the defendant has at that point been “tried” on the charged offense, even if he was acquitted solely based upon the erroneous rulings by the trial judge. Thus, Moran argued, the question for double jeopardy purposes is not how or why the trial judge erred, but simply whether the error went to the defendant’s culpability, or instead to some other entirely procedural defect. And as Moran conceded, such a rule may well mean that defendants escape liability even when the judge’s error is based on arguments advanced by the defendant, but that was already true under the Court’s decision in United States v. Martin Linen Supply Co. and its progeny. Instead, the real problem, as Moran conceded in response to questioning from Justice Sotomayor, is that there may be little that legislatures can do meaningfully to insulate against such error – short of abolishing bench trials altogether, or at least circumscribing trial judges’ power to enter mid-trial directed verdicts, a response that led Justice Sotomayor to suggest that Moran was only “sinking [his] hole deeper.”

But if Moran’s goal was to convince the Justices that there was no reasonable middle ground between his position and a complete reorientation of the Court’s double jeopardy jurisprudence, he may well have excavated himself from that hole during the remainder of his argument, especially in a particularly telling exchange with Justice Kagan, which culminated in her agreement that Michigan’s position reduces to the view “that this whole line of cases has essentially set up a system where the real purposes of the Double Jeopardy Clause do not apply and where defendants walk away with windfalls.” Although Moran responded by returning to his basic pitch about why such a result is a necessary accommodation to vindicate those purposes, Justice Kagan’s query – and not Moran’s rejoinder – may have been the strongest evidence that his work was done.

Arguing for Michigan, Timothy A. Baughman of the Wayne County Prosecutor’s Office  may well have missed that signal, opening with the proposition that the legal error that prompted the directed verdict in Evans was entirely of the defendant’s making. This opened the door to a series of exchanges between Baughman and Justices Scalia and Kagan in which the state’s counsel repeatedly tried to articulate a coherent principle that would distinguish erroneous trial court rulings such as the one in Evans from those to which jeopardy would necessarily attach under the Court’s precedents. The success of Baughman’s efforts on that front – or lack thereof – became crystal clear under questioning from Justice Breyer; after describing Moran’s argument as suggesting that the test should be whether the trial judge’s ruling was “procedural” or “substantive,” Breyer went so far as to suggest that, “if we don’t accept his view, it’s going to be a terrible mess.” Although Baughman once more tried to distinguish the Martin Linen body of cases in reply, he eventually conceded to Justice Alito that “[i]t can be a very difficult line to draw.”

Instead, toward the end of his argument, Baughman shifted focus to the principle more clearly offered by the United States in its amicus brief, i.e., that the problem in this case is that the trial court’s erroneous ruling did not misconstrue an element of the offense pursuant to which the defendant had been prosecuted, but rather that it effectively redefined the offense itself. If jeopardy attaches to offenses, Baughman suggested, then the offense Evans was acquitted of committing – thanks to the trial judge’s error – was different from the offense with which he was charged.

Arguing on behalf of the United States, Assistant to the Solicitor General Curtis Gannon went one step further, suggesting that, “if the Court’s unwilling to draw that particular distinction, it could also resolve the case by allowing the government to appeal in both of those instances” –  that is, where trial courts misconstrue or add elements to offenses. As Gannon quickly conceded, such a result would require the Court to limit at least some of its prior double jeopardy rulings “to their facts,” if not to revisit the Martin Linen line altogether. But rather than pursuing Gannon’s efforts to distinguish the Court’s prior cases, the Justices spent most of his remaining time asking about data – queries suggesting that the Court had moved on to gauging the practical consequences of the rule for which Moran had argued.

In his rebuttal, Moran directed the Court to the dog that didn’t bark – the absence of any other states as amici in support of Michigan, or of any efforts at the state level to create a procedure for reconsidering a mid-trial determination of insufficiency of proof after the Supreme Court appeared to embrace such a process in its 2005 decision in Smith v. Massachusetts. Moran’s closing point, in effect, was that the problem in Evans just isn’t worth a solution. Given that he concluded his presentation with three minutes to spare, it seems the Justices may well agree.

Posted in Evans v. Michigan, Featured, Merits Cases

Recommended Citation: Steve Vladeck, Argument recap: Court weighs its choices in double jeopardy case, SCOTUSblog (Nov. 8, 2012, 4:31 PM), http://www.scotusblog.com/2012/11/argument-recap-court-weighs-its-choices-in-double-jeopardy-case/