A Michigan trial court granted defendant-petitioner Lamar Evans a directed verdict of not guilty after the State of Michigan charged him with burning property because the State of Michigan failed to prove that the property Evans allegedly burned was not a dwelling. Upon appeal, the Michigan Supreme Court determined that the trial court erred when it required the State of Michigan to prove that the property was not a dwelling. Furthermore, the Michigan Supreme Court held that the Double Jeopardy Clause of both the Fifth Amendment and the Michigan Constitution did not bar Evans’ retrial for the same offense because the error involved an element that was added to the offense. As a result, the directed verdict did not relate to an actual factual element of the case and therefore failed to address Evans’ guilt or innocence of the charged offense. Evans now appeals to the Supreme Court of the United States, arguing that the Michigan Supreme Court erroneously carved out a novel “Extra Element” exception to the Double Jeopardy Clause. This decision will further define the outer limits of protection that the Double Jeopardy Clause offers to defendants and the types of rulings that prosecutors can appeal.
Questions as Framed for the Court by the Parties
Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a mid-trial directed verdict of acquittal because the prosecution failed to prove that fact?
Does the Double Jeopardy clause bar retrial when the trial judge directs a verdict of acquittal because the prosecution failed to prove a fact that was ultimately not an element of the charged crime?
On September 22, 2008, two Detroit police offers, Jermaine Owens and Cyril Davis, noticed a house on fire and proceeded to investigate. After hearing an explosion at the burning house, the officers witnessed Evans running away from the house while holding a gasoline can. Officer Owens commanded Evans to stop and gave chase on foot after Evans refused to comply, eventually apprehending him. Evans then informed the officers that he had made a mistake and burned down the house.
The burn patterns in the house indicated the use of ignitable liquid accelerants and subsequent testing verified that gasoline had been poured throughout the house, which led investigators to conclude that Evans had committed arson. At the time of the fire, however, the house was uninhabited and lacked gas, electricity, and water service.
Evans was charged in the Wayne County Circuit Court with violating MCL 750.73, “burning other real property.” The offense requires the State of Michigan to prove that the defendant “willfully or maliciously burn[ed] any building or other real property.” The trial judge, however, erroneously added an additional element to the offense by also requiring the State to prove that the burned building was not a dwelling. The judge granted Evans’ mid-trial motion for a directed verdict, entered an order of acquittal, and dismissed the case because the State failed to prove the additional element. In making her decision, the trial judge ignored the evidence offered by the State to prove any of the actual elements of the crime.
On appeal, the Michigan Court of Appeals reversed the trial judge’s order granting Evans’ motion for a directed verdict and remanded the case. The court of appeals held that the trial court erred by requiring the State of Michigan to prove that the burned building was not a dwelling to convict Evans of burning other real property. Moreover, since the trial judge failed to consider Evans’ culpability in regard to any of the actual elements of the crime prior to dismissing the case, the court of appeals concluded that Evans was never actually acquitted of the original charges. Thus, while the Double Jeopardy Clause of both the U.S. and Michigan Constitutions bar defendants from being prosecuted for the same offense following acquittal, the court of appeals determined that neither applied in Evans’ case.
Evans appealed to the Michigan Supreme Court, which affirmed the court of appeals. The Michigan Supreme Court reasoned that the definition of “acquittal” balances the public's interest in both allowing the state to have “one full and fair opportunity to prosecute a criminal case” and preserving the constitutional rights of criminal defendants. The Michigan Supreme Court thus concluded that resolving Evans’ case solely on the State’s inability to prove an additional element of the charged crime instead of on the factual elements of the case undermined society's interest in allowing the State of Michigan to have a full and fair opportunity to present its case.
The Supreme Court granted certiorari on June 11, 2012 to consider whether the Double Jeopardy Clause bars retrial after a trial judge dismisses a criminal charge due to the State’s inability to prove an additional incorrect element of the charged offense. Evans v. Michigan, 132 S.Ct. 2753 (2012).
This dispute revolves around whether the Double Jeopardy Clause bars the retrial of dismissals in which the trial judge made a legal mistake by adding an additional incorrect element to charged offense and dismissed criminal charges solely based on the state’s inability to prove that element. The Supreme Court’s holding in this case may determine whether a dismissal based solely on a state’s failure to prove an element that is not an actual element of a charged offense is an acquittal for the purposes of double jeopardy.
Effect of Permitting Appeal for Cases Dismissed Solely Due to Legal Error
The National Association of Criminal Defense Lawyers (“NACDL”), in support of Evans, warns that creating an exemption to defendants’ double jeopardy protection whenever a trial judge dismisses criminal charges due to a prosecutor’s inability to prove an additional incorrect element of an offense will erode double jeopardy protection for all criminal defendants. Specifically, the NACDL argues that there is no bright line distinguishing dismissals based on legal error and those based on factual error because both have overlapping characteristics. Since there is no clear way to determine whether a dismissal was based on a legal rather than a factual mistake, the NACDL contends that reviewing courts will be able to conclude that a dismissal was based exclusively on a legal error even if the dismissal also has characteristics indicating factual error. The NACDL argues that the State’s proposed exception to the Double Jeopardy Clause will swallow the rule and subject virtually all defendants to retrial.
In response, the State of Michigan asserts that criminal defendants’ double jeopardy rights will remain unchanged if the Michigan Supreme Court’s ruling is upheld. The State notes that trial judges do not commonly mistake the elements of the offense charged and maintain that allowing prosecutors to appeal decisions based on their inability to prove an incorrect element of an offense would affect relatively few defendants. Moreover, even in cases where prosecutors believe that a charge was dismissed due to their failure to prove an additional legal element, courts are careful to grant prosecutorial appeal only when it is clear that the decision, in fact, turned on a nonexistent element.
Impact on Due Process Rights
Evans argues that basing defendants’ double jeopardy protection on whether the dismissal of the charges against them were based on legal or factual error would not only violate the Due Process Clause’s guarantee of fair trial proceedings in cases involving directed verdicts, but also in cases where the trial judge incorrectly instructs the jury to add an additional element to the charged offense. Permitting appeal following a jury’s “not guilty” verdict on the grounds that the verdict was based on incorrect jury instruction, he argues, will create “an enormous hole” in the Double Jeopardy Clause’s bar to retrial following acquittal and make virtually all cases involving a jury acquittal subject to appeal.
The State of Michigan rejects the notion that states will be able to appeal jury verdict acquittals if the Michigan Supreme Court’s decision is upheld because, even when a jury’s verdict is based on a finding that an incorrect element needs to be proven, all jury verdicts of acquittal automatically trigger double jeopardy protection. Further, the State of Michigan warns that granting defendants double jeopardy protection for dismissals based on a trial judge’s failure to determine the defendant’s guilt in relation to any of the factual elements of the charged offense grants the defendant a windfall while undermining society’s interest in granting the State a full and fair opportunity to present its case.
The Fifth Amendment protects criminal defendants by preventing the government from trying a defendant twice for the same crime, or Double Jeopardy. According to the Supreme Court in U.S. v. Martin Linen Supply Co., the purpose of this protection is to prevent the government from repeatedly attempting to convict a defendant, subjecting the defendant to continued anxiety and enhancing the possibility of convicting the innocent. But not all resolutions of criminal trials activate Double Jeopardy protection for defendants. In Martin Linen, the Supreme Court decided that only a ruling that “represents a resolution, correct or not, of some or all of the factual elements of the offense charged” acts as an acquittal for the purposes of Double Jeopardy.
The Michigan Supreme Court ruled that Double Jeopardy protection did not apply to the trial court’s directed verdict in favor of Evans. In deciding the case, the Michigan Supreme Court distinguished the issue in Evans from three cases from the Supreme Court of the United States: Arizona v. Rumsey, 467 U.S. 203 (1984); Smalis v. Pennsylvania, 467 U.S. 140 (1986); Smith v. Massachusetts, 543 U.S. 462 (2005). Interpreting the previous cases as involving mere evidentiary errors, the Michigan Supreme Court ruled that the trial court erred in this case when it required the State of Michigan to prove with evidence that the property was not a dwelling. According to the Michigan Supreme Court, the trial court erred when it created an extra factual element of the offense and then dismissing the case when the State of Michigan failed to prove that element with evidence. Because this extra factual element was not a correct part of the crime, the Michigan Supreme Court held that the trial court’s directed verdict did not meet the Martin Linen definition of acquittal. Thus, the Michigan Supreme Court held that Evans was not entitled to Double Jeopardy protection.
Rulings Based on Guilt versus Rulings Based on the Correct Elements of a Crime
Evans argues that the Supreme Court of the United States has held that Double Jeopardy bars retrial where a legal error involving the elements of a crime results in an acquittal. Evans notes that these acquittals can result from either a jury verdict or a directed verdict by the judge. According to Evans, the Supreme Court in U.S. v. Scott supplied the key distinction between acquittals and other resolutions that do not activate Double Jeopardy protection. Where a ruling is related to the guilt or innocence of the defendant, Evans argues, it constitutes an acquittal with respect to Double Jeopardy The State of Michigan responds that Evans misreads the Martin Linen standard by shifting the focus of the test to whether a trial judge’s ruling related to the defendant’s guilt or innocence. Instead, the State of Michigan argues, the ruling must resolve one or more of the “factual elements of the offense charged.”
Evans argues that because the trial court found that the State of Michigan failed to prove an element of the offense, the directed verdict determined his guilt or innocence. Thus, Evans believes, it is irrelevant that the ruling involved a legal error; the directed verdict constituted an acquittal relevant to Double Jeopardy. But the State of Michigan counters that other rulings related to guilt or innocence could activate Double Jeopardy even though these rulings do not meet the Martin Linen definition of an acquittal. Because the trial court based the dismissal on the State of Michigan’s failure to prove the building was not a dwelling, and that element was not an actual element of the offense, the State of Michigan argues that the ruling does not meet the definition of an acquittal.
Evans further contends that the Supreme Court has long held that Double Jeopardy still applies when a trial court makes a legal error as to the elements of the offense. According to Evans, this principle is true regardless of how extreme the legal error may be. But the State of Michigan argues that resolutions based on legal errors constitute acquittals only when they are related to the actual factual elements of the offense. To support his position, Evans points to the Supreme Court decisions in Rumsey, Smalis, and Smith. According to Evans, the Supreme Court held that these cases constituted acquittals even though the trial courts based their respective rulings on incorrect interpretations of the elements of the crime.
The State of Michigan responds by arguing that the cases Evans relies upon are different than this case because both Rumsey and Smith involved erroneous evidentiary rulings. In contrast to this case, the evidentiary errors in those cases still related to the correct elements of the offenses charged, according to the prosecution. Thus, according to the State of Michigan, those cases meet the Martin Linen standard where this case does not.
The Martin Linen Standard
Finally, Evans contends that the Michigan Supreme Court incorrectly carved out an “Extra Element” exception to the Double Jeopardy clause. According to Evans, the Michigan Supreme Court adopted an impermissibly narrow interpretation of the Martin Linen standard when it required the legal error to be related to a correct element of the crime to give rise to Double Jeopardy protection. The State of Michigan counters that the Martin Linen standard requires the trial court to resolve the actual factual elements of the crime. The State of Michigan disagrees that this principle involves an exception to Double Jeopardy, but rather argues that the language of the Martin Linen standard allows no other interpretation.
According to the State of Michigan, this principle is not an exception because the Martin Linen definition requires that a ruling involve the factual elements of the offense but an erroneously-added element would not be part of the factual elements of the offense. Evans counters that the State of Michigan misreads the decisions in Rumsey, Smalis, and Smith to conclude that they are distinguishable to case at issue. According to Evans, the errors in each case can be characterized as both incorrect interpretations of an element of the offense or as the addition of an erroneous element of the offense. For instance, Evans points to the error in Rumsey, where the trial court incorrectly held in a murder sentencing that the aggravating circumstance of murder for pecuniary benefit must involve murder for payment and not robbery. Though the Michigan Supreme Court considered the ruling an evidentiary error, Evans contends that a prosecutor could easily describe the error as the addition of an incorrect element of the sentence—that the murder was a contract killing. As a result, the Michigan Supreme Court adopted a distinction that was overly formal and inconsistent with Supreme Court precedent, Evans contends. Consequently, Evans argues that the “Extra Element” exception does not conform with the purposes of Double Jeopardy exception of preventing repeated attempts to convict a defendant.
Finally, the State of Michigan argues that the Supreme Court of the United States should overturn its holding in Martin Linen and allow prosecutors to appeal every time the trial court directs a verdict of acquittal based on a defendant’s motion. The State of Michigan contends that where the defendant seeks to end trial early, before a full resolution by a jury, a retrial resulting from an appeal would still constitute the same case—or “Jeopardy”—as the original trial. First, the State of Michigan notes that since the ratification of the Fifth Amendment, directed verdicts are not the same as verdicts returned by a jury. Second, the State of Michigan asserts that an acquittal only results from a verdict of not guilty delivered by the fact-finder. Consequently, because a directed verdict removes the case from the jury before it delivers a verdict, the State of Michigan argues that a directed verdict should never constitute an acquittal. In other words, the State of Michigan argues that since the defendant—though a motion for a directed verdict—elects to end the trial early before a verdict, reviewing that dismissal does not place the defendant in jeopardy a second time.
In this case, the Supreme Court will determine the contours of the Fifth Amendment’s protection against Double Jeopardy. Petitioner Lamar Evans argues that the Michigan Supreme Court incorrectly carved out an “Extra Element” exception to the definition of acquittals relevant to the Double Jeopardy clause, an exception that does not conform with the previous decisions of the Supreme Court of the United States that apply Double Jeopardy protection where the trial court bases an acquittal on a legal error. The State of Michigan argues that the Michigan Supreme Court’s ruling conforms with the current definition of an acquittal based on a directed verdict. The outcome of the case will further define the situations where the prosecution can appeal a trial court’s ruling in favor of a criminal defendant, and offers the opportunity to reconsider whether to grant Double Jeopardy protection for defendants who successfully move for directed verdicts.
- Kimberly Atkins, U.S. Justices to Decide if Wrongly Acquitted Defendant Can Be Retried (June 18, 2012)