I Told You So: The Double Jeopardy Bar to Government Appeal of a Midtrial Judgment of Acquittal Revisited

March 9, 2013
By Hanging Out with Carl Gunn


The Supreme Court just reaffirmed the double jeopardy bar to government appeals of a midtrial judgment of acquittal.
The bar exists even if everyone agrees the bar was based on an erroneous legal interpretation.
The Court also agrees you couldn’t raise legal challenges to the sufficiency of evidence pretrial even if you wanted to.

A few months back, I wrote about the double jeopardy bar that prevents the government from appealing a judgment of acquittal granted in the middle of a trial (or anytime before the jury returns a verdict) even if the judgment is based on an erroneous interpretation of the law. (See “Sometimes They Can’t Appeal Even When the Judge Is Wrong” in the December 2012 link at the right.) I noted there’s both Ninth Circuit and Supreme Court law on this, and that’s one reason to consider holding your legal arguments about the sufficiency of the evidence until trial. I also pointed to case law that says you technically can’t raise legal arguments about the sufficiency of the evidence pretrial, even if you want to. (Though the government, in its zeal to avoid a trial, probably won’t object if you do it that way.)

Well, I don’t like to say “I told you so” (actually, maybe I do like saying it, just a little bit), but the Supreme Court just recently reaffirmed this case law – in a case called Evans v. Michigan, No. 11-1327, 2013 WL 610197 (U.S. Feb. 20, 2013). The Court reiterated the rule that “the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.’” Id. at *4 (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)). The Court noted that it was “not writ[ing] on a clean slate,” pointed out that “it has been half a century since we first recognized the rule,” and cited a string of its prior cases, Evans, 2013 WL 610197, at *4 (citing Fong Foo, Smith v. Massachusetts, 543 U.S. 462, 467-68 (2005), Sanabria v. United States, 437 U.S. 54, 68-69, 78 (1978), Arizona v. Rumsey, 467 U.S. 203, 211 (1984), Smalis v. Pennsylvania, 476 U.S. 140, 144-45 n.7 (1986), Burks v. United States, 437 U.S. 1, 10 (1978), andUnited States v. Martin Linen Supply, 430 U.S. 564, 571 (1977)). The Court then applied those cases to the clearly erroneous trial court judgment of acquittal before it, explaining as follows:

There is no question the trial court’s ruling was wrong; it was predicated upon a clear misunderstanding of what facts the State needed to prove under State law. But that is of no moment. Martin Linen, Sanabria, Rumsey, Smalis, andSmith all instruct that an acquittal due to insufficient evidence precludes retrial, whether the court’s evaluation of the evidence was “correct or not,” Martin Linen, 430 U.S., at 571, and regardless of whether the court’s decision flowed from an incorrect antecedent ruling of law.

Evans, 2013 WL 610197, at *5.

The Court also made another point consistent with one I suggested in my prior post. It noted an argument made by the government similar to one I’ve seen in my cases – that the defendant could have asked for a ruling on his legal argument pretrial and so shouldn’t be able to raise a double jeopardy bar now. Id. at *8. The Court rejected that argument for the same reason I suggested in my prior post for rejecting it – that a motion challenging the sufficiency of the actual evidence (as opposed to the charging document) “necessarily may not be made until trial is underway.” Id. at *9.

So this protection is still out there. And . . . I told you so.