Against the wishes of Wayne County's prosecutor and chief appellate counsel, the U.S. Supreme Court granted cert today in People v. Evans, in order to decide, in SCOTUSblog's words, "Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact." The Michigan Supreme Court, in a 4-3 decision, permitted retrial. The cert petition argued:
Petitioner’s case squarely presents the question presented and has no confounding facts. The trial judge unambiguously granted a directed verdict of acquittal to Petitioner at the close of the prosecution’s case because the prosecution had failed to prove that the property burned was not a dwelling house, a fact the trial judge erroneously believed to be an element of the offense. App. 68-71. The trial judge confirmed the acquittal with a written order.
The prosecution appealed, and it is undisputed that Petitioner objected to retrial on Double Jeopardy Clause grounds in both state appellate courts. There- fore, both appellate courts issued comprehensive published opinions devoted to the Double Jeopardy Clause issue presented in this petition. When Peti- tioner’s case reached the Michigan Supreme Court, both sides agreed that the trial court had committed a legal error in requiring the prosecution to prove that the building burned was not a dwelling house and that the only question to be resolved was the Double Jeopardy Clause effect of that error.
Petitioner’s case is therefore an excellent vehicle for this Court to decide whether a trial court’s mid- trial grant of a directed verdict of acquittal is review- able if it is based on an error of law that can be characterized as adding an element to the charged offense.
A commenter to a Crimes and Consequences post on the case today was skeptical:
It seems to me that when the defense asks for an erroneous ruling, gets it, then also seeks and gets an acquittal as a direct result of the ruling they asked for, the [double jeopardy clause] does not bar retrial. Any other result rewards bamboozling the judge. It's a species of the invited error doctrine: A party cannot benefit by an error it labors to bring about.
