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Everybody was Fong Foo Fighting: SCOTUS Follows 1962 Decision -- Holds Double Jeopardy Bars Retrial Even When Based on Error of Law

By: James W. Kraus
February 22, 2013

No we don’t bear news of a revival of the 1974 hit by Carl Douglas.  Actually, that would be old news.  Douglas re-recorded “Kung Fu Fighting” in 1998, and it shot to 8 in the UK, but I digress.  More to the point, on Wednesday the Supreme Court, echoing its decision more than 50 years ago in Fong Foo v. United States, 369 U.S. 141 (1962), re-affirmed the concept that retrial following a court-decreed acquittal is barred, even if the acquittal is “based upon an egregiously erroneous foundation.” Evans v. Michigan, No. 11-1327 (February 20, 3013). The decision in Evans, resulted in a reversal of a decision of the Michigan Supreme Court, which had reversed the trial court’s acquittal of Lamar Evans on the charge “burning other real property.”  The opinion of an 8-1 Court (Justice Alito dissenting), authored by Justice Sotomayor, concluded that the Double Jeopardy Clause barred retrial of Evans after the trial court had granted judgment of acquittal. 

In the trial court, Lamar Evans was charged under Michigan law with burning “other real property.”  After the close of the government’s case, Evans made a motion for judgment of acquittal, arguing that the government had failed to prove a critical element of the crime, asserting specifically that the government had failed to prove that the building was “not a dwelling house.”  The trial court agreed, entering a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence to prove that particular element of the offense.   It based its finding on the fact that the evidence had demonstrated that the burned property actually was a dwelling house. 

In its review, the Supreme Court pointed out, as both the defense and prosecution had ultimately agreed as the case moved through appeals in Michigan, that the unproven “element” was not actually a required element at all. Rather, under controlling precedent, burning “other real property” is a lesser included offense of Arson (which requires that the structure be a dwelling), while the provision under which he was charged covers all other real property.  Accordingly, there had been no requirement for the government to prove that the structure was something other than a dwelling. 

“...the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character.”

The Court emphasized that on the issue of Double Jeopardy it has “applied Fong Foo’s principle broadly,”  ruling in the course of numerous cases that an acquittal is unreviewable whether a judge directs a jury to return a verdict of acquittal, e.g., Fong Foo, 369 U. S., at 143, or forgoes that formality by entering a judgment of acquittal herself. See Smith v. Massachusetts, 543 U. S. 462, 467–468 (2005).  Again, the Court stated that an acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, Sanabria v. United States, 437 U.S. 54, 68–69, 78 (1978); a mistaken understanding of what evidence would suffice to sustain a conviction, Smith, 543 U. S., at 473; or a “misconstruction of the statute” defining the requirements to convict.   Arizona v. Rumsey, 467 U. S. 203 (1984).  Justice Sotomayor wrote that “in all these circumstances, the fact that the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does not alter its essential character,” quoting United States v. Scott, 437 U. S. 82, 98 (1978).

Most essentially, the Court found that its prior rulings on the issue “have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.”   It distinguished such rulings from those more “procedural” rulings that may also terminate a case mid-trial, which are more commonly referred to as dismissals or mistrials.  Those types of dismissals, the Court wrote, include “rulings on questions that ‘are unrelated to factual guilt or innocence,’ but ‘which serve other purposes,’ including ‘a legal judgment that a defendant, although criminally culpable, may not be punished” because of some problem like an error with the indictment, quoting  Scott, at 98, and n. 11.

Justice Alito wrote in his dissent that the majority was incorrect in finding that the trial judge’s ruling was an actual “acquittal.”  He asserted that it was not, explaining that the Court has consistently defined an acquittal as a decision that “actually repre­sents a resolution, correct or not, of some or all of the factual elements of the offense charged.”  He disputed that a true acquittal could be based on the failure of the prosecution to prove an “imaginary element.”

The complete opinion can be found here:  http://www.supremecourt.gov/opinions/12pdf/11-1327_7648.pdf