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The Court Gets It Wrong in Evans v. Michigan

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With all respect, I think both the majority and the dissent got it wrong in Evans v. Michigan, although the dissent gets much more right than the Court's opinion.

The defendant, Lamar Evans, was in the middle of a jury trial for arson when his lawyer argued to the judge, erroneously, that the state had to prove that he burned down a "dwelling," and had introduced no such proof. The judge agreed, and granted a directed verdict of acquittal. The question before the Supreme Court was whether, under the Double Jeopardy Clause, Evans could be retried after the erroneous acquittal. By a vote of 8-1, with Justice Alito as the sole dissenter, the Court held that he could not.

Justice Sotomayor, writing for the Court, held that the Double Jeopardy Clause prohibits retrial following a court-decreed acquittal, even if the acquittal is "based upon an egregiously erroneous foundation." The Court noted that several of its precedents had applied this rule in cases closely resembling Evans's. The Court declined to extend to instances in which an acquittal has been granted a rule it developed for mistrials brought about at the defendant's instigation. In such instances, the Court has allowed retrials because the defendant himself sought a pre-verdict termination of the proceedings, thus effectively waiving his right to the one-fair-shot-only rule that lies at the heart of Double Jeopardy protection. 

No such rationale applies, the Court held, to acquittals, which are fact-related, substantive terminations of jeopardy favorable to the accused.  Actual acquittals have, historically, enjoyed the highest degree of protection under the Double Jeopardy Clause. While it may be true that the defendant gets a windfall by persuading the judge that the government failed to prove a non-existent element, that problem can be dealt with if the states were to adopt rules that disallow mid-trial acquittals, encourage judges to withhold judgment until after the jury's verdict, or provide for mandatory continuances or expedited mid-trial appeals by the state.

Justice Alito dissented, contending that Double Jeopardy "is not triggered by a judge's erroneous pre-verdict ruling that creates an 'element' out of thin air and then holds that the element is not satisfied."  
The winning argument for the state was not that hard to see, but, oddly, was touched upon only lightly either in the briefs or at argument.  The winning theory was the venerable and pre-Constitutional rule that no party  --  in a criminal case or otherwise  -- can benefit by an error it invites.  The invited error doctrine is one prosecutors should always have on their radar screen.

In this case, defense counsel  hornswoggled the trial judge into thinking the arson statute had an element that simply was not there (something Evans conceded on appeal).  On that basis alone, and at the defendant's request, the judge granted a directed acquittal, finding, not too surprisingly, that the state had adduced no evidence to prove the phantom element.

To apply the invited error doctrine in this case would show no disrespect to the important protections of the Double Jeopardy Clause, since the defendant was never in the "jeopardy" his lawyer convinced the trial judge lay at the bottom of the charge.  And it would have vindicated a central, anti-game playing rule of litigation that protects accused arsonists and the rest of us.

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