Reply Brief — John Kevin Woodward, Petitioner v. California, et al.

No. 24-227

IN THE

Supreme Court of the United States

____________________________________

JOHN KEVIN WOODWARD,

v.

STATE OF CALIFORNIA,

____________________________________

Petitioner,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE CALIFORNIA COURT OF APPEAL, SIXTH DISTRICT

____________________________________

REPLY BRIEF FOR PETITIONER

____________________________________

Daniel L. Barton

Evan Greenberg

NOLAN BARTON OLMOS &

LUCIANO, LLP

600 University Avenue

Palo Alto, CA 94301

Holly Boux*

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue, NW

Washington, DC 20037

* Licensed in Colorado; not

E. Joshua Rosenkranz

Counsel of Record

Duncan Hosie

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Nicole Ries Fox

Emily Minton Mattson

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071

licensed in the District of

Columbia (practice is under the supervision of bar

members pursuant to D.C.

App. R. 49(c)(8)).

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTRODUCTION ..................................................... 1

I.

Hatch’s Definition Of Acquittal Is

Inconsistent With This Court’s Precedents

And The Fifth Amendment’s Double

Jeopardy Protections. ......................................... 3

II. Hatch Also Conflicts With This Court’s

Precedents By Creating A Presumption

Against Double Jeopardy. .................................. 6

III. This Case Is An Excellent Vehicle. .................... 9

IV. The Decision Below Was Wrong. ..................... 11

CONCLUSION ........................................................ 13

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Evans,

514 U.S. 1 (1995) ....................................................7

Benton v. Maryland,

395 U.S. 784 (1969) ................................................7

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ..............................................10

Elmendorf v. Taylor,

23 U.S. (10 Wheat.) 152 (1825) .............................7

Evans v. Michigan,

568 U.S. 313 (2013) ........................ 3, 4, 7, 8, 11, 12

Fong Foo v. United States,

369 U.S. 141 (1962) ............................................7, 8

Green v. United States,

355 U.S. 184 (1957) ................................................2

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ..............................................10

Malloy v. Hogan,

378 U.S. 1 (1964) ....................................................7

McElrath v. Georgia,

601 U.S. 87 (2024) .............................. 3, 4, 8, 11, 12

iii

People v. Hatch,

22 Cal. 4th 260 (2000)................................ 2, 5, 7, 8

Smith v. United States,

599 U.S. 236 (2023) ................................................6

Tibbs v. Florida,

457 U.S. 31 (1982) ..................................................5

United States v. Martin Linen Supply Co.,

430 U.S. 564 (1977) ..........................................2, 11

United States v. Scott,

437 U.S. 82 (1978) ..................................................4

United States v. Sisson,

399 U.S. 267 (1970) ................................................8

Constitutional Provisions

U.S. Const. amend. V ..................................................2

Statutes

Cal. Penal Code § 1385 ...........................................1, 9

1

INTRODUCTION

Petitioner John Woodward was charged in 1992

with the murder of his roommate’s girlfriend. Pet.

App. 4a. The evidence against Mr. Woodward

amounted to, essentially, “fingerprints found on the

victim’s car” (the outside, but not the inside) and his

“apparent inconsistent statements.” Pet. App. 74a75a. Over the course of two trials, the government

was “given full and fair opportunity to convict” Mr.

Woodward based on that evidence. Pet. App. 74a.

Despite those two opportunities, the prosecution was

“unable to prove the defendant guilty beyond a reasonable doubt.” Id. In both trials, “the majority of jurors vot[ed] for acquittal.” Id.

But the case did not end with that uncertainty.

Rather, in 1996, the trial court determined that the

case should be dismissed “pursuant to Penal Code

Section 1385 based on insufficient evidence.” Pet.

App. 71a. As the trial court explained in a written

order, it “had the opportunity to view the witnesses

and hear the conflicting testimony,” and concluded

“[t]he evidence presented by the prosecution lacks

the sufficiency needed to find the defendant guilty.”

Pet. App. 73a-74a. Despite “over 300 pieces of evidence … and over 30 witnesses” at each trial, “the

prosecution was not able to utilize the evidence to

prove the defendant guilty beyond a reasonable

doubt.” Pet. App. 74a. In short, “[t]he substantive

quality of the evidence did not lend itself to proving

the prosecution’s contentions.” Id. “There is simply a

lack of evidence on which to convict the defendant.”

Pet. App. 76a.

2

For 25 years following the order of dismissal, Mr.

Woodward moved on with his life, believing himself

protected by the Fifth Amendment’s prohibition

against being “twice put in jeopardy” for the same offense. U.S. Const. amend. V. Because the trial court

had dismissed the case “based on insufficient evidence,” Mr. Woodward should have been constitutionally protected from being prosecuted again. See,

e.g., United States v. Martin Linen Supply Co., 430

U.S. 564, 572-73 (1977).

Yet when California came back for Mr. Woodward in 2022, it relied on a peculiarity of California

law and the California Supreme Court’s decision in

People v. Hatch, 22 Cal. 4th 260 (2000) to deny Mr.

Woodward constitutional protection. According to

the court of appeal, “the trial court [in 1996] articulated ‘insufficient evidence’ as the primary basis for

its dismissal.” Pet. App. 31a. But because there was

“no clear indication in the record that the trial court

viewed the evidence in the light most favorable to

the prosecution and concluded that no rational trier

of fact could have found the defendant guilty beyond

a reasonable doubt,” Pet. App. 40a, the court’s dismissal had no constitutional effect. Mr. Woodward

now finds himself subjected to the very “embarrassment, expense and ordeal and … continuing state of

anxiety and insecurity” the Double Jeopardy Clause

should protect against. Green v. United States, 355

U.S. 184, 187 (1957).

This Court’s review is required to remedy California’s perversion of the Fifth Amendment and this

Court’s precedents.

3

I.

Hatch’s

Definition

Of

Acquittal

Is

Inconsistent With This Court’s Precedents

And The Fifth Amendment’s Double

Jeopardy Protections.

California’s Hatch rule conflicts with this Court’s

authorities and contravenes the protections of the

Double Jeopardy Clause. Pet. 5-11. California asks

this Court to ignore that conflict because the Petition

“does not allege that the decision below implicates

any conflict of authority among lower courts.” BIO 8.

But the only reason there is no such conflict is that

California is an outlier: No other State has adopted a

rule like California’s. The relevant conflict is between the Fifth Amendment’s double jeopardy right,

as encapsulated by this Court’s well-settled, broad

definition of “acquittal,” and the restrictive definition

adopted in Hatch. There is no dispute that “whether

an acquittal has occurred for purposes of the Double

Jeopardy Clause is a question of federal, not state,

law.” McElrath v. Georgia, 601 U.S. 87, 96 (2024).

California cannot adopt its own, narrowed interpretation of the Fifth Amendment or deflect attention

from that conflict based on its own outlier status.

California criticizes Petitioner for finding a conflict by “pars[ing]” this Court’s precedents “as though

we were dealing with language of a statute.” BIO 13

(citation omitted). This Court’s precedents need not

be “parsed” to determine their meaning. They

squarely hold that a trial court’s “determination that

the State had failed to prove its case” is an “acquittal.” Evans v. Michigan, 568 U.S. 313, 320 (2013).

4

In Evans, a near-unanimous Court reiterated

that it “define[s] an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Id. at 31819 (citations omitted). Evans explicitly stated that

an acquittal under the Double Jeopardy Clause includes (1) “‘a ruling by the court that the evidence is

insufficient to convict,’” (2) “a ‘factual finding [that]

necessarily establish[es] the criminal defendant’s

lack of criminal culpability,’” and (3) “any other

‘rulin[g] which relate[s] to the ultimate question of

guilt or innocence.’” Id. at 319 (alterations in original) (quoting United States v. Scott, 437 U.S. 82, 91,

98 & n.11 (1978)). This Court reaffirmed this point

last term in McElrath, defining “acquittal” by

“look[ing] to whether the ruling’s substance ‘relate[s]

to the ultimate question of guilt or innocence.’” 601

U.S. at 94 (citation omitted).

California urges this Court to focus on the “circumstances” of Evans and McElrath. BIO 12. According to California, because “neither decision had

any occasion to explore the line between dismissals

based on a judge’s view about the weight of the evidence and those based on a determination that the

evidence is legally insufficient,” they could not conflict with Hatch. Id. That this Court has not yet answered the precise question presented by this case,

however, only underscores the importance of this

Court’s review to ensure that double jeopardy principles are applied consistently throughout the United States.

California next defends Hatch by referring to its

“methodology,” as if it does not set forth a substan-

5

tive rule. BIO 14. But the Hatch rule is a substantive

one that limits the reach of a constitutional right

under federal law: It “bar[s] retrial only when a trial

court clearly makes a finding of legal insufficiency.”

Hatch, 22 Cal. 4th at 274 (emphasis added). Through

that framework, Hatch jettisons two of the three circumstances this Court identified as “acquittals” in

Evans. As a result, the trial court’s 1996 dismissal is

an “acquittal” under this Court’s definition, but not

under California’s.

California asks this Court to ignore its recent

elucidations as to what qualifies as an “acquittal,”

and to focus on Tibbs v. Florida, 457 U.S. 31 (1982).

BIO 10-15, 17-20. Tibbs cannot bear the weight California puts on it. Tibbs predates Evans and

McElrath and is inapposite here. Tibbs concerns “the

understanding that a defendant who successfully

appeals a conviction is subject to retrial.” 457 U.S. at

40 (emphasis added). This procedural posture is crucial to Tibbs’s logic and is distinct from this case’s

posture in two fundamental ways.

First, Tibbs acknowledged the permissibility of

retrial following a weight-of-the-evidence reversal,

allowing retrial only after the state “presented sufficient evidence to support conviction.” Id. at 42-43.

Tibbs would not make retrial permissible here because the dismissal was an acquittal under this

Court’s precedents, not a simple weight-of-theevidence reversal. Pet. 13-14; infra 11-13.

Second, in a Tibbs scenario, retrial can occur only after the state has “persuaded the jury to convict.”

457 U.S. at 42-43. But California has never persuad-

6

ed a jury to convict Mr. Woodward. Rather, in the

1990s, California twice tried, and twice failed, to do

so. See Pet. App. 4a. It did not even come close to

succeeding; the first jury trial resulted in an 8 to 4

vote in favor of acquittal, and the second resulted in

a 7 to 5 vote, again in favor of acquittal. Id.

California’s reliance on Smith v. United States,

599 U.S. 236 (2023), BIO 13-14, is misplaced for the

same reason. Like Tibbs, Smith concerns the distinct

strand of double jeopardy jurisprudence addressing

retrial after the state has persuaded a jury to convict, circumstances not present here. Neither Tibbs

nor Smith offers California any help as it attempts

to convict Mr. Woodward for a third time. Pet. 2.

California then turns to other jurisdictions’ preEvans precedents, BIO 19-20, again ignoring this

Court’s recent clarifications as to what counts as an

“acquittal.” These cases provide no meaningful support for California’s defense of the Hatch rule. They

do not establish the absence of a conflict between

Hatch and the ironclad constitutional commitments

of the Fifth Amendment as pronounced by this

Court.

II. Hatch Also Conflicts With This Court’s

Precedents By Creating A Presumption

Against Double Jeopardy.

California does not, and cannot, dispute that

Hatch creates a presumption against applying double jeopardy to bar retrial, although it does attempt

to rebrand that presumption as simple “instructions”

or “methodology.” BIO 14, 17. Hatch demands that

7

reviewing courts “assume the [trial] court did not intend to dismiss for legal insufficiency.” 22 Cal. 4th at

273. A defendant cannot overcome this presumption

without “clear evidence” the trial court intended the

dismissal to be an acquittal and “viewed the evidence in the light most favorable to the prosecution.”

Id. at 271, 273.

This Court’s precedents contain no similar presumption. That disparity alone requires this Court’s

review. Through Hatch, California has impermissibly engrafted a substantive hurdle to the double

jeopardy retrial bar, which narrows the Constitution’s Fifth Amendment right as expounded by this

Court. But “State courts … are not free from the final authority of this Court” when interpreting the

United States Constitution. Arizona v. Evans, 514

U.S. 1, 8-9 (1995); Elmendorf v. Taylor, 23 U.S. (10

Wheat.) 152, 160 (1825) (same). That is especially so

where, as here, the state’s rule imposes a greater

burden than this Court’s precedents allow. Benton v.

Maryland, 395 U.S. 784, 794, 796 (1969) (disallowing

“‘watered-down’” state interpretations of double

jeopardy right and requiring retrial permissibility

“be judged … under this Court’s interpretations”

(quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964))).

Nevertheless, California contends that the Hatch

presumption is permissible under this Court’s principle that an acquittal remains so for the purposes of

double jeopardy even if it was based on a legal error.

BIO 17-18. But Hatch is flatly inconsistent with that

principle, which bars retrial even where an “acquittal is ‘based upon an egregiously erroneous foundation.’” Evans, 568 U.S. at 318 (quoting Fong Foo v.

8

United States, 369 U.S. 141, 143 (1962) (per curiam)). Hatch transparently exempts one form of error

from this bar, requiring a trial court to have used

magic words for double jeopardy to apply. If a trial

court issues an acquittal but fails to make a “clear

enough” record for a reviewing court to not just conclude, but “confidently conclude” that the trial court

“viewed the evidence in the light most favorable to

the prosecution,” then under Hatch, no acquittal has

occurred. 22 Cal. 4th at 273. This flies in the face of

this Court’s precedents allowing a judge to “acquit”

after making precisely this error. United States v.

Sisson, 399 U.S. 267, 278 (1970) (affirming that a

decision based on the defendant’s “demeanor on the

stand [which] convinced the court of his sincerity”

was an “acquittal” barring retrial). Although California attempts to distinguish Sisson as “pre-Tibbs,”

BIO 16, the principle that “egregious[]” errors, even

of this type, do not prevent an acquittal from barring

retrial is alive and well as evinced by Evans’s reaffirmance of Fong Foo, see 568 U.S. at 318 (quoting

369 U.S. at 143).

Finally, California tries to reframe the issue presented as “an ambiguous prior reversal” controlled

by state law. BIO 17-18. But the issue presented is

whether California’s definition of acquittal conflicts

with this Court’s definition, Pet. i, and whether an

acquittal occurred is unambiguously a question of

federal law that only this Court can, and must, address. McElrath, 601 U.S. at 96.

9

III. This Case Is An Excellent Vehicle.

There are no factual complications or preservation issues that would impede this Court’s review of

the question presented, the resolution of which is

critical to the uniform and fair application of the

Double Jeopardy Clause. The 1996 dismissal order

expressly cites “insufficient evidence” as a reason

warranting dismissal, Pet. App. 71a, 77a; in 2022,

California renewed its prosecution of Mr. Woodward

for the same charge that the court dismissed in 1996,

Pet. App. 2a-3a, 8a; and Mr. Woodward preserved

his argument that the Double Jeopardy Clause bars

retrial in the California superior court, the California Court of Appeal, and the California Supreme

Court, Pet. App. 8a, 24a-25a, 83a-102a. The question

presented therefore is properly poised for this

Court’s review.

California nonetheless contends that this case is

a “poor vehicle” because Mr. Woodward did not raise

the issues presented in his Petition before the lower

courts. Specifically, California asserts that Mr.

Woodward “did not contest that Tibbs’ analytical

framework applied to the 1996 dismissal order,” that

Evans and McElrath “established new standards” for

determining whether a dismissal constitutes an acquittal, or that Hatch’s “methodology” for interpreting Penal Code § 1385 orders is unconstitutional.

BIO 20.

But Mr. Woodward did not need to present those

specific arguments in the lower courts to preserve

them for this Court’s review. What matters is that

Mr. Woodward’s core argument—that the 1996 dis-

10

missal order operates as an acquittal under the

Double Jeopardy Clause—was preserved at every

level. See Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 330-31 (2010) (holding that petitioner’s

request that First Amendment precedent be overturned was “not a new claim,” even though he did

not it raise below, because he consistently asserted a

First Amendment violation (citation omitted)); Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379

(1995) (“Our traditional rule is that ‘[o]nce a federal

claim is properly presented, a party can make any

argument in support of that claim; parties are not

limited to the precise arguments that they made below.’” (citation omitted and alteration in original));

Pet. 12. Mr. Woodward did not ask the California

superior court to overturn Hatch because that would

have been futile. Instead, he presented that argument to the California Supreme Court and this

Court, the only courts with authority to act on it.

Such refinement is permissible elaboration on the

core issues presented and does not amount to an assertion of “new” claims.

Moreover, California’s mistaken arguments regarding preservation do nothing to detract from the

fundamental importance of the question presented.

A decision from this Court would resolve whether

California is undermining the federal protections of

the Double Jeopardy Clause through restrictive state

law. That is a critical issue not just for Mr. Woodward, but for any defendant in California whose case

is dismissed without the magic words prescribed by

Hatch. Only this Court can intervene to correct California’s error and safeguard Californians’ federal

rights.

11

IV. The Decision Below Was Wrong.

Under this Court’s precedents, the court of appeal’s decision was wrong. Judge Terry’s 1996 dismissal constitutes an acquittal because the

substance of the dismissal “relate[s] to the ultimate

question of guilt or innocence.” See McElrath, 601

U.S. at 94 (citation omitted and alteration in original); Pet. 12-13.

California maintains that the 1996 dismissal is

not an acquittal because it was based “on the weight

of [the prosecution’s] evidence.” BIO 11. California

premises its argument not on the substance of the

dismissal—which, as the California Superior Court

observed, “does not expressly mention the weight of

the evidence, only its sufficiency,” Pet. App. 63a—

but on particularities of California law, which California contends should be decisive in interpreting

the federal constitution. According to California, because its Penal Code creates two types of dismissals,

an order must explicitly cite “legally insufficient evidence” as a reason for a dismissal to qualify as an

“acquittal” under federal law. As discussed above

and in the Petition (at 5-9), that reasoning is flawed.

This Court has never required magic words to qualify a dismissal as an acquittal. Indeed, the state “label[]” accompanying a dismissal order “do[es] not

control [the] analysis in this context.” McElrath, 601

U.S. at 96 (quoting Evans, 568 U.S. at 322); see also

Martin Linen Supply, 430 U.S. at 571 (recognizing

that “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action”).

12

California provides no meaningful response to

Mr. Woodward’s argument that the substance of the

1996 dismissal relates to the ultimate question of

guilt or innocence, which all parties agree is the ultimate touchstone of an acquittal for double jeopardy

purposes. California simply accuses Mr. Woodward

of “ignor[ing] the trial court’s written explanation” of

the minute order dismissing the case. BIO 10. But

California is mistaken. Judge Terry’s explanation,

which the Petition repeatedly quotes, underscores

that his order “relate[d] to the ultimate question of

guilt or innocence.” See McElrath, 601 U.S. at 94.

The written order recognized that “the prosecution

ha[d] been given two opportunities to convict,” and

both trials “resulted in hung juries, with the majority of jurors voting for acquittal.” Pet. App. 74a.

Judge Terry examined the records of both trials, noting that the prosecution “presented no new evidence

pointing to the defendant’s guilt” in the second trial.

Id. He highlighted the “300 pieces of evidence [made]

available at both trials,” the testimony of “30 witnesses,” and that the prosecution’s theory of motive

was “not a credible one.” Pet. App. 74a-76a. He then

unequivocally concluded that “a jury will never be

able to reach a unanimous verdict of guilty,” Pet.

App. 77a, because “[t]he evidence presented by the

prosecution lacks the sufficiency needed to find the

defendant guilty,” Pet. App. 74a. That conclusion is

necessarily a “substantive ruling[]” that bears on

“the ultimate question of guilt or innocence.” See Evans, 568 U.S. at 319.

In sum, the trial court’s 1996 dismissal operates

as an acquittal under McElrath and Evans. In holding otherwise, the court of appeal violated Mr.

13

Woodward’s federal constitutional right against double jeopardy.

CONCLUSION

For the foregoing reasons and those set forth in

the Petition, the Petition should be granted.

Respectfully submitted,

Daniel L. Barton

Evan Greenberg

NOLAN BARTON OLMOS &

LUCIANO, LLP

600 University Avenue

Palo Alto, CA 94301

Holly Boux*

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania

Avenue, NW

Washington, DC 20037

* Licensed in Colorado;

not licensed in the

District of Columbia

(practice is under the

supervision of bar

members pursuant to

D.C. App. R. 49(c)(8)).

December 20, 2024

E. Joshua Rosenkranz

Counsel of Record

Duncan Hosie

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Nicole Ries Fox

Emily Minton Mattson

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Avenue

Suite 2700

Los Angeles, CA 90071