Tuesday, May 27, 2014


I have a pithy saying hanging on the wall of my office. It's something along the lines of, "Sometimes you have to admit there's no authority for your position because no judge has ever been that stupid before." Only it's phrased a tad more, umm, colorfully.

It's true, though. Every once in a while, an appellate attorney finds herself desperately looking for an actual case law cite for some legal proposition that is so obvious, it has never needed to be stated before. It's like the legal equivalent of having to find a reference to cite for the fact that the sky is blue or up is up. There aren't any cases to cite for some basic propositions because no one has ever thought it was any other way and thus there's never been a need for an appellate court to spell it out.

For example, I would never have thought anyone would question that if a trial were held,a jury selected and sworn in, and then the prosecution just declined to participate in any way, as in they put on no evidence, the only option would be for the district court to enter a directed verdict of not guilty and the state would not be allowed to appeal it. Seems pretty obvious, like one of the lowest level proofs 9th graders learn on the first day of geometry. The state has the burden of proof. Putting on no evidence at all does not meet that burden of proof. Only choice is an acquittal. Acquittals are not appealable. Simpler than simple. A + B = C.

But I guess it's not that simple to everyone, thus once again proving that my wall quote is sadly true. Because as of today, there is now written authority from the United States Supreme Court on this point, made necessary by the Illinois Supreme Court's total bungling of this simple issue.

First, let me explain one type of "decision" SCOTUS issues. It's called a "GVR." Grant, vacate, and remand. To get SCOTUS to consider your case, you have to file a petition for certiorari. The vast majority of those are denied. About 70-80 are granted each year. Those are the cases the court hears argument on and issues long written opinions on. It's quite common, though, that for each cert petition that is granted and argued, there are several others involving the same issue. Those petitions won't always be denied, but can be held. Then when the main opinion is issued, the court will "GVR" the other petitions, with instructions that the lower court should reconsider the issue in light of that newly-announced decision. Those cases will show up on the generic weekly order list, with only a short paragraph heralding that the petitioner has technically just "won" her case at the Supreme Court.

Today's order list had a more unusual "order" on it in the form of a short "Per Curiam" decision. A per curiam decision is one that isn't attributed to one particular justice as an author. In some cases, it might mean no one justice wants to take the heat, but more often (and in this case) it means they're all just really in agreement and it's not worth their time to worry about who will get the credit. In this case, the written decision/order was necessary because what the Illinois court did couldn't go uncorrected, but not worth SCOTUS' time as a full grant-with-argument because, duh, there was just no question about what the result had to be. It all leads to the oddest little thing I've ever seen from SCOTUS.

Now, maybe this is the kind of thing that's really only interesting to a total legal nerd like myself. But it sure made me giggle this afternoon.

In short, here's what happened. The state had trouble finding its two critical witnesses. So they got a trial continuance. And another one. And I think at least one more. It was a little unclear how much work they were really putting in to tracking these two down. Finally, about 4 years after the incident leading to the charges, the state ran out of patience from the trial court and got no more continuances. The state participated in jury selection and sat back as a jury was sworn in. Now, for constitutional double jeopardy purposes, the most basic tenet of law is that jeopardy attaches when a jury is sworn. It has been that way for far longer than I've been practicing law. The state declined to dismiss the charges without prejudice, which would have allowed it to refile the charges at a later date. They instead insisted that only another continuance would suffice, but the trial court was pretty much done waiting for these witnesses to be found and the state did have other witnesses on its witness list, after all.

The state informed the judge that it would not be participating in the trial. The judge replied, "We'll see how that works." The judge then, in front of the now-sworn jury, asked the state if it had an opening statement. The prosecutor said, "Respectfully, the state is not participating in this case." Ok, then. So the judge invited the state to call its first witness. "Respectfully, your honor, the state is not participating in this case."

Any law student who'd taken two days of criminal procedure should know what to do if representing the defendant at that point. "Your honor, the defense moves for a directed verdict of not guilty. Respectfully, of course." And any person who'd taken zero days of law school should know the only choice the judge would have at that point would be to grant that motion, declare the defendant not guilty, and end the case. Which is exactly what the district court judge here did.

The state appealed. Odd as most lay persons know the state can't appeal an acquittal. But odder still, the Illinois Supreme Court found the acquittal to be inappropriate because jeopardy had never attached because the defendant never faced the "threat" of conviction. Can't be convicted if the state doesn't even try... An inexplicable ruling. Indefensible. Totally wrong because the clear authority has long, long been that jeopardy attaches when a jury is sworn. Period. Moreover, from a practical standpoint, this ruling would have been a disaster. It would have allowed any prosecutor anywhere in Illinois to unilaterally force a continuance by just refusing to participate when the trial court wouldn't agree to said continuance. No matter how much any court wants a particular defendant not to get off, that should be an unacceptable possibility. It would be chaos. So the US Supreme Court rightly issued a short, sweet little decision saying, "Duh, no." They said it a lot more kindly than I would have were I Justice Per Curiam. (A colleague and I were wondering who actually did write it. She theorized Scalia, but I said there's no way Scalia would have been that gentle.)

I'm not sure how many prosecutors the nation over would have thought to try this. I can't imagine how many appellate courts nation-wide would have given prosecutors the green light to pull such a stunt. What the Illinois Supreme Court did was really pretty stupid. At least now, if another court anywhere in the country decides to be that stupid, there will be authority for the poor defense attorney dealing with said stupidity to cite. Because in the end, it seems, there is always one court who will eventually be that stupid.


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