Case could set new double jeopardy standard

Kent Scheidegger

We know that wrongful convictions can be reversed, but what about wrongful acquittals?

With the U.S. Supreme Court prepared to decide next term whether double jeopardy principles prevent the retrial of a defendant acquitted based on a judge’s misunderstanding of the elements of the crime, legal experts say the ruling could have a big impact.

But some warn that barring a retrial in such circumstances would create a situation in which defendants can game the system by trying to trick trial judges.

“I don’t think the Double Jeopardy Clause ought to be used to reward a defendant for getting erroneous rulings in their favor,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a public interest law organization that supports prosecutors and law enforcement officials.

Erroneous extra element

In June, the Supreme Court granted certiorari in Evans v. Michigan, a case involving a defendant who was accused of burning down a vacant building and charged with arson under Michigan law. During the defendant’s trial, the judge, on a motion brought by the defense, erroneously ruled that the prosecution was required to present proof that the burned house was not a dwelling — something that is not a required element of the state statute.

Based on the erroneously added element to the offense, the court granted the defendant’s motion for a directed verdict and entered an order of acquittal.

The prosecution appealed and the Michigan Court of Appeals reversed, 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 hadn’t resolved such a factual element, double-jeopardy principles did not bar retrial.

The Michigan Supreme Court agreed, and affirmed the ruling.

Finality and imbalances

If the Supreme Court follows the lead of Michigan’s highest court in this case, it could create a tenuous criminal justice system where verdicts would no longer be considered the final word — the exact situation the Double Jeopardy Clause was intended to prevent.

However, Scheidegger dismissed the notion that defendants are being unduly prejudiced.

“A defendant asking for finality? That is pretty funny,” Scheidegger said. “The Double Jeopardy Clause has long created an imbalance at the trial level where judges can be reversed for making an error in the prosecution’s favor, but not if the error is in the defendant’s favor.”

Some express concerns that if retrials were to be allowed over double jeopardy objections in cases where judges make errors, there would be little stopping such a ruling from extending to mistakes made by jurors.

Scheidegger doubts such an extension will occur even if the justices rule in favor of the state, however.

“Historically we have attached greater weight to a jury verdict of acquittal,” Scheidegger said. “The double jeopardy rule comes to us as part of our history to prevent certain abuses. But we ought not expand it any further than that.”