Opinion recap: Reaffirming double jeopardy’s line between “substantive” and “procedural” dismissals
on Feb 25, 2013 at 7:59 am
For over fifty years, the Supreme Court has recognized that the Double Jeopardy Clause of the Fifth Amendment bars the retrial of a criminal defendant after a mid-trial court-ordered acquittal, even if that ruling results from an egregious legal error committed by the trial judge on the defendant’s own motion. And since its 1977 decision in United States v. Martin Linen Supply Co., the Court has been equally adamant that, whether characterized as an “acquittal” or not, the relevant inquiry for double jeopardy purposes is a functional one – whether the mid-trial dismissal was based upon any ruling that the prosecution’s proof was insufficient to establish the defendant’s criminal liability. Such “substantive” dismissals are acquittals triggering double jeopardy; other, “procedural” dismissals are not.
So understood, the most significant aspect of last Wednesday’s decision in Evans v. Michigan is the Court’s refusal to narrow or otherwise revisit either of these principles. Instead, the Justices held that the Double Jeopardy Clause bars the retrial of Lamar Evans, whose arson prosecution was dismissed by a Michigan trial court at the close of the state’s evidence after the prosecution failed to prove an element that the trial judge had mistakenly ruled to be part of the underlying offense. Rejecting efforts by Michigan and the federal government as an amicus to distinguish Martin Linen, the Court thereby reaffirmed that, for double jeopardy purposes, the sometimes hazy line between acquittals based upon “substantive” and “procedural” dismissals remains a dispositive one for constitutional purposes.
Writing for an eight-to-one majority, Justice Sotomayor began by emphasizing that, in answering whether jeopardy attaches to a directed verdict of acquittal based upon a holding that the state failed to prove an element that it was not actually required to, the Court was not writing “on a clean slate.” Instead, ever since the Court’s 1962 decision in Fong Foo v. United States, the Justices had “applied Fong Foo’s principle broadly,” and had consistently barred retrial of criminal defendants whose mid-trial acquittals were based on erroneous legal foundations.
Indeed, the whole point of the Court’s decision in Martin Linen, Justice Sotomayor explained, was to expand that principle to any “substantive” ruling, including “a ruling by the court that the evidence is insufficient to convict,” a “factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability,” and any other “rulin[g] which relate[s] to the ultimate question of guilt or innocence.” As Justice Sotomayor summarized, “These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial, which we generally refer to as dismissals or mistrials.” So understood, the trial court’s error in Evans – acquitting the defendant after the prosecution failed in its case in chief to establish an element of the offense mistakenly added by the trial judge – clearly fell on the “substantive” line, since it was “a determination that the State had failed to prove its case.”
In so ruling, the Court specifically rejected the distinction upon which the Michigan Supreme Court had seized – that, because the trial court mistakenly added an element to Evans’s offense, he was never actually in jeopardy on the offense as charged, and so the trial court’s error did not go to his underlying culpability for the charged offense. As Justice Sotomayor wrote, “This argument reads Martin Linen too narrowly, and it is inconsistent with our decisions since then.” Instead, “[t]his case, like our previous ones, involves an antecedent legal error that led to an acquittal because the State failed to prove some fact it was not actually required to prove.” Thus, the specific nature of the legal error is irrelevant so long as it produces the same result, i.e., a mid-trial dismissal based upon the state’s failure to carry its evidentiary burden.
Justice Sotomayor next turned to the deeper claim advanced by Michigan and the federal government as an amicus – and by Justice Alito in his solo dissent: that at least some of the Court’s prior decisions should be revisited. In response, Justice Sotomayor noted that there is little evidence that the Martin Linen line of decisions has produced an “unworkable” rule, and that their logic “still holds.” Moreover, she stressed, the states have an easy way to avoid the problem that arose in Evans thanks to the Court’s 2005 decision in Smith v. Massachusetts. To that end, states can deny trial judges the power to enter such mid-trial directed verdicts of acquittal altogether, as Louisiana and Nevada already do. Or they can at least encourage trial judges to defer resolution of such motions until after the jury has returned a verdict. After all, even if trial judges make similar mistakes after the verdict is in, reversal of such rulings on appeal would merely reinstate the jury’s already delivered guilty verdict – and thereby avoid double jeopardy concerns.
In dissent, Justice Alito argued that “[t]he Court’s decision makes no sense.” Echoing Michigan and the federal government, Justice Alito stressed the extent to which the defendant precipitated the error by arguing for the erroneous reading of the Michigan statute and then by moving for a directed judgment of acquittal. More fundamentally, Justice Alito explained, the purpose of the Double Jeopardy Clause was never to protect defendants from being retried after being acquitted of the wrong offense – and that’s what had happened in Evans’s case.
But as Justice Sotomayor pointed out, Justice Alito’s real gripe appears to be with the Court’s prior double jeopardy jurisprudence. As he suggested, “given how far we have departed from the common-law principles that applied at the time of the founding, we should at least ensure that our decisions in this area serve the underlying purposes of the constitutional prohibition against double jeopardy.” Because Justice Alito wrote only for himself, it appears that none of the other Justices share his inclination to revisit Fong Foo, Martin Linen, or their successors.
In that regard, by far the most significant implication of the Court’s decision in Evans is its relative lack of doctrinal significance. By declining to accept a new distinction among different types of “substantive” mid-trial dismissals, the Justices hewed to the broader line drawn thirty-six years ago in Martin Linen, and to the more fundamental principle underlying Fong Foo. Thus, although one could have wondered if last Term’s decision in Blueford v. Arkansas portended a coming shift in the Court’s approach to the Double Jeopardy Clause, Wednesday’s decision in Evans appears to answer that question in the negative – and to reaffirm that, where erroneous mid-trial judgments of acquittal are concerned, any and all substantive dismissals will bar retrial, regardless of their specific nature or cause.