Amicus Curiae Brief — Smith v. Massachusetts

No. 03-8661

IN THE

Supreme Court of the United States

MELVIN T. SMITH,

Petitioner,

VS.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

On Writ of Certiorari to the

Appeals Court of Massachusetts

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

When a trial court grants a motion for acquittal on a charge

based on an incorrect interpretation of the law, does the Double

Jeopardy Clause prevent that trial court from reconsidering its

decision and reinstating the charge before the case is submitted

to the jury?

(i)

TABLE OF CONTENTS

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Interest of amicus curiae ... 0.6... cc cece l

Summary of facts and case ............. cece eee ee eee 2

Summary of argument ............. 0.00 c cece ee eee 4

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I

In its current form, the Double Jeopardy Clause can create

windfalls for the defendant at the expense of society’s

compelling interest in punishing the clearly guilty ...... 5

Il

The Double Jeopardy Clause should only apply when the

interests it protects are clearly threatened............ 10

Ill

There is no threat to the interests protected by the

Double Jeopardy Clause that justifies invoking the

ED os cn de.adndevendenes eeuuaneewa 19

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(iii)

iV

TABLE OF AUTHORITIES

Cases

Arizona v. Rumsey, 467 U. S. 203, 81 L. Ed. 2d 164,

Se Ce, SEE ds cedkeneedbaeeraeaneneus 8

Arizona v. Washington, 434 U. S. 497, 54 L. Ed. 2d 717,

Se Ge I cnt sede denccehuaneeeunesaanes )

Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707,

Sr a, SEE «6 <n un sdevesekeettenneennes 7

Burks v. United States, 437 U. S. 1, 57 L. Ed. 2d 1,

he Fee rer rrr 8, 22, 24

Commonwealth v. Smalis, 480 A. 2d 1046

GU I, BUD 6. do kccdsoscsendescotecevekesus 21

Commonwealth v. Smith, 788 N. E. 2d 977

ee GR: BD 6h v hacbcdeaueneis 2, 3, 4, 22, 25

Commonwealth v. Smith, 797 N. E. 2d 380

NN kod dnddewweeuencecesubennaduuien 4

Crist v. Bretz, 437 U. S. 28, 57 L. Ed. 2d 24,

ey a EE 5666.65 bande cdecceuiesdeauds 21

Ehlert v. United States, 402 U. S. 99, 28 L. Ed. 2d 625,

Oe i Ee CED ok edecsdcasawadeseuuee 11,12

Fong Foo v. United States, 369 U. S. 141, 7 L. Ed. 2d 629,

Be ee UE 60-4 Awekdvncceiuasaenees 8, 14, 21

Green v. United States, 355 U. S. 184, 2 L. Ed. 2d 199,

ee UD 6 0 ks s cdnveew en ceesean 6, 16, 19

Hiibel v. Sixth Judicial District Court, 542 U.S. __,

159 L. Ed. 2d 292, 124 S. Ct. 2451 (2004) .......... 18

Hudson v. United States, 522 U. S. 93, 139 L. Ed. 2d 450,

ee EE Cok acacccanabachacbdbadsades 16

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

ea EE 6 0-40 00000nbddcebwnnceksees 8

Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

PED a chines wassundiseciown<takan 22

Lee v. United States, 432 U. S. 23, 53 L. Ed. 2d 80,

le TE 6 nh nec badavneauasace< 15, 16

Lockhart v. Fretwell, 506 U. S. 364, 122 L. Ed. 2d 180,

ee ED 66s 4 hnanecudcauucsacawsséas 19

Mickens v. Taylor, 535 U. S. 162, 152 L. Ed. 2d 291,

eS ED ida 6 kb aKdackenceebdsdetnieks 19

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

ee EN os whdnwddeveviedant dintieaes 7

Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S.

357, 141 L. Ed. 2d 344, 118 S. Ct. 2014 (1998) ...... 18

Reed v. Farley, 512 U. S. 339, 129 L. Ed. 2d 277,

Py SY EE sd o-c-ocdevdecdeewessediesseus 8

Sanabria v. United States, 437 U. S. 54, 57 L. Ed. 2d 43,

Ser es Gk NEED 0 as 6ywnbewnedbbeaiseds 8, 15, 24

Serfass v. United States, 420 U. S. 377, 43 L. Ed. 2d 265,

Fe es Gs CE a Sch bv ed Caer es ike enedeerces 23

Smalis v. Pennsylvania, 476 U. S. 140, 90 L. Ed. 2d 116,

Pee a GO CP COED 6 ccdcdncececece 7, 14, 15, 21, 24

State v. Bell, 322 N. W. 2d 93 (Iowa 1982) ............ 23

State v. Jones, 7 Ga. 422 (1849) ...... ccc ec ce ccc eees 25

vi

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

as Ek: SED 0 x 6 5004646008408 00040% 8,9, 18

Strunk v. United States, 412 U. S. 434, 37 L. Ed. 2d 56,

93 S. Ct. 2260 (1973) ...... aris ie ie ee, 8

Swisher v. Brady, 438 U. S. 204, 57 L. Ed. 2d 705,

es Sk SPEED kos Se veeenecncecssusssceees 24

United States v. Anzalone, 886 F. 2d 229 (CA9 1989) ... 23

United States v. Dinitz, 424 U. S. 600, 47 L. Ed. 2d 267,

8 ee RF Pree 9,17

United States v. Gearey, 368 F. 2d 144 (CA2 1966) ..... 11

United States v. Jenkins, 420 U. S. 358, 43 L. Ed. 2d 250,

Be i Gk, DCT vc nc ccdccvcccescecusa 11, 12, 24

United States v. Leon, 468 U. S. 897, 82 L. Ed. 2d 677,

se Re TT ert TT eee 9

United States v. Love, 597 F. 2d 81 (CA6 1979)........ 23

United States v. Martin Linen Supply Co.,

430 U. S. 564, 51 L. Ed. 2d 642,

Se a BNE 6.65 066650 daerenseusess Passim

United States v. Salvucci, 448 U. S. 83, 65 L. Ed. 2d 619,

es Ne CHEE pc cence ceeecevediedseaownr 19

United States v. Sanges, 144 U. S. 310, 36 L. Ed. 445,

yp Ree |) PPPPrrerrivirTrir ere 25

United States v. Scott, 437 U. S. 82, 57 L. Ed. 2d 65,

SS BS. Ce. SIG CES FED cc cccccesss 6, 7, 10-12, 17, 20, 2°

United States v. Sisson, 399 U. S. 267, 26 L. Ed. 2d 608,

, os & (12). PPPPPrerTerreTerTrrirrreri ry 14

Vii

United States v. Tateo, 377 U. S. 463, 12 L. Ed. 2d 448,

PP SE 6 se eis secccusendenveeeuus 9,18

United States v. Wilson, 420 U. S. 332, 43 L. Ed. 2d 232,

ra ee EE a 5 40 Svc dbaucceuenssccecue 6, 20

Wade v. Hunter, 336 U. S. 684, 93 L. Ed. 974,

Pe EEE 5 os 0-0 0b wb bases oo6eeeees 10, 12

Wright v. West, 505 U. S. 277, 120 L. Ed. 2d 225,

Pee ae ee ED Sans cd usb cus ces ceaeuseces 22

Rules of Court

ee ee A Ge iii nk 5 Si Sod dks Kw Wei ccsvn 22

Pay PU DUD ck hehe S i Rede educewe 23

ID 6-6 40cndsudyseannencdacndue 22

State Statutes

Mass. Gen. Laws Ann., ch. 140, §121................. 3

Mass. Gen. Laws Ann., ch. 269, §10(a) ............... 3

Treatise

4 W. Blackstone, Commentaries (Ist ed. 1769).......... 6

Miscellaneous

Office of Legal Policy, Report to the Attorney General on

Double Jeopardy and Government Appeals of Acquittals

(1987), reprinted in 22 U. Mich. J. L. Ref. 831 (1989) .. 6

Phillips, The Motion for Acquittal: A Neglected Safeguard,

Sa See as Oe SS Es Shu eR dA a cabbea es Sen ekes 7

Viil

Sauber & Waldman, Unlimited Power: Rule 29(A) and the

Unreviewability of Directed Judgments of Acquittal,

44 Am. U. L. Rev. 433 (1994)

IN THE

Supreme Court of the United States

MELVIN T. SMITH,

Petitioner,

VS.

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

The Double Jeopardy Clause carries the risk of substantial

unfairness to society. When its ultimate sanction of immunity

from criminal liability protects an acquittal or similar dismissal

based on a mistake of law, the defendant gains a windfall at the

—_

.

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

expense of society’s compelling interest in law enforcement.

The present case involves an appropriate decision by the trial

court to correct a legal mistake that improperly acquitted the

defendant on the weapons charge. Reinstating the charge did

no harm to any interest legitimately protected by the Clause,

and upholding this decision will establish precedent that

minimizes double jeopardy windfalls to undeserving defen-

dants. This would preserve society’s interest in prosecuting and

convicting guilty criminals, which is consistent with the

interests of justice and society that the CJLF was formed to

protect.

SUMMARY OF FACTS AND CASE

Felicia Brown lived in a three-story building in Boston with

her mother, stepfather, and two siblings. See Commonwealth

v. Smith, 788 N. E. 2d 977, 980 (Mass. App. 2003). Brown’s

family occupied the third floor and most of the second floor,

while renting out the rest of the building to tenants. See ibid.

On August 15, 1996, Christopher Robinson, Brown’s cousin,

spent the day at the Brown home drinking and smoking crack

and marijuana. See id., at 980-981. At around 4:00 a.m., he

went from the third floor to the second floor to lie down. As

“he reached the bottom of the stairs, he saw Brown and the

defendant in Brown’s bedroom.” /d., at 981. The defendant,

Melvin Smith, held what looked like a .38 caliber pistol.

Robinson testified that as he went from the third to the

second floor, Smith shot him three times. /bid. Brown and

Smith then left the house. Robinson sought help from Brown’s

stepfather, who called the police. See ibid. “The shooting

severely injured Robinson and destroyed his digestive tract.”

Ibid. Brown identified Smith as the shooter from a “photo-

graph array” in the hospital and at trial identified him as the

shooter. See ibid.

Smith was charged with assault with intent to murder,

assault and battery with a dangerous weapon, and unlawful

possession of a firearm, fourth offense. See id., at 980. The

firearm charge was under a Massachusetts law that makes

knowing possession of a “firearm” illegal unless otherwise

exempted. See Mass. Gen. Laws Ann., ch. 269, § 10(a) (West

2000). The relevant Massachusetts law defines “firearm” as “a

pistol or revolver or other weapon of any description, loaded or

unloaded, from which a shot or bullet can be discharged and

which the length of the barrel or barrels is less than 16 inches

.... Mass. Gen. Laws Ann., ch. 140, § 121 (West 2002).

After the prosecution rested, the defense “moved for a required

finding of not guilty on the charge of unlawful possession of a

firearm, arguing that because the Commonwealth had not

introduced direct evidence of the gun’s length, the Common-

wealth had not proved that the gun met the statutory definition

of a firearm.” Smith, 788 N. E. 2d, at 981. The judge granted

the motion. While this was not told to the jury, it was entered

on the docket. See ibid.

Later the same day, after the defense rested, but before

closing argument, the prosecution brought to the trial court’s

attention a Massachusetts Supreme Judicial Court opinion

holding “that testimony that a gun was a pistol or revolver was

enough to permit a firearm charge to the jury.” bid. Since the

prosecution had submitted evidence conforming to this stan-

dard, the trial court then corrected its mistake and reinstated the

firearm charge. See id., at 981-982. “The docket reflects that

the motion for required finding of not guilty had been reconsid-

ered and denied.” Jbid. The prosecution did not offer any

additional evidence after the acquittal motion was denied, and

the intermediate appellate court stated that “the defendant was

provided the opportunity to reopen his case.” /d., at 983. The

defendant was convicted on all charges. See id., at 980.

The intermediate appellate court upheld the firearm

conviction against the defendant’s double jeopardy attack. See

id., at 982. It held that since the trial court’s ruling did not

require a second proceeding, double jeopardy was not violated.

See ibid. The appellate court also held that the trial court had

the authority under Massachusetts law to reconsider its ruling

on the defendant’s motion, and that the defendant was not

prejudiced by reinstating the firearm charge. See id., at 982-

983. The appellate court affirmed all the convictions. See id.,

at 989.

The Massachusetts Supreme Judicial Court denied further

appellate review. See Commonwealth v. Smith, 797 N. E. 2d

380 (2003) (tabic). This Court granted certiorari on June 14,

2004.

SUMMARY OF ARGUMENT

Although the Double Jeopardy Clause has ancient roots, the

realities of modern procedure have extended its reach far

beyond its common law origins. This has led to a still develop-

ing body of law that can produce anomalous results. A

particularly great problem with modern applications of the

Clause is the potentially unfair granting of windfalls to unde-

serving defendants.

The Double Jeopardy Clause is the ultimate weapon in

constitutional criminal procedure, as a successful claim

immunizes the defendant from criminal liability. While there

are many instances where this ultimate sanction is fair, it is

unfair to the prosecution to free the defendant without any

possibility of retrial due to the mistake of a third party such as

the trial court. The Clause should be applied in a way to

minimize these windfalls.

Windfalls can be reduced by limiting the Clause to cases

where the interests it protects are clearly threatened. An

interest-based approach is consistent with this Court’s applica-

tions of the Clause and other areas of constitutional criminal

procedure such as the Fourth Amendment and the right to

effective assistance of counsel. Balancing societal and defen-

dant interests also explains the significance of acquittals in

double jeopardy jurisprudence. Limiting the Clause’s protec-

ae ee ee © 6 ee me tr Bm i ee

tion to acquittals minimizes its costs to society while retaining

most of its protection. A similar calculus should also be used

in determining whether an action is an acquittal that is worthy

of the Clause’s protection.

The trial court’s decision to reinstate the weapons charge

did not threaten any of the defendant’s double jeopardy

interests in this case. Since this action occurred midtrial, and

before the jury began deliberations, the defendant was not

threatened with being worn down by the State’s superior

resources. The fact that trial counsel never asked to reopen the

defense demonstrates that the defense to the weapons charge

was not prejudiced by the ruling.

Nor did reinstating the weapons charge threaten the defen-

dant’s interests in finality. While double jeopardy protects

acquittals, an acquittal does not warrant the Clause’s protection

until it is final. For example, this Court can reverse an appel-

late court’s holding that there was insufficient evidence to

convict, and a verdict of acquittal can be overturned by a jury

poll. Similarly, an appellate court can use its power to rehear

its own decisions to reverse an initial determination of insuffi-

cient evidence to convict. Since the trial court had the authority

to reconsider its dismissal of the weapons charge under

Massachusetts law, the reinstatement of the weapons charge

was a simple exercise of a valid judicial power. Therefore, the

initial dismissal was not final and did not warrant double

jeopardy protection.

ARGUMENT

I. In its current form, the Double Jeopardy Clause

can create windfalls for the defendant at

the expense of society’s compelling interest

in punishing the clearly guilty.

This Court’s interpretation of the Double Jeopardy Clause

illustrates the preblems with applying its common law princi-

ples to a very different modern setting. The Clause has ancient

roots, but it now regulates a very different criminal justice

system. Fitting this old guarantee to modern procedure can

pose substantial problems to society and the justice system.

The common law development of double jeopardy began

sometime in the thirteenth century. By the seventeenth century,

it had evolved “into four common law pleas: autrefois acquit

(former acquittal), autrefois convict (former conviction),

autrefois attaint (former attainder), and pardon.” See Office of

Legal Policy, Report to the Attorney General on Double

Jeopardy and Government Appeals of Acquittals (1987),

reprinted in 22 U. Mich. J. L. Ref. 831, 843-844 (1989). The

common law pleas were described in some detail by Black-

stone. See 4 W. Blackstone, Commentaries 329-332 (1st ed.

1769). The Double Jeopardy Clause “tracked Blackstone’s

statement of the principles of autrefois acquit and autrefois

convict,” United States v. Wilson, 420 U. S. 332, 341-342

(1975), rooting the Clause in the common law pleas. See

United States v. Scott, 437 U. S. 82, 87 (1978).

The purpose of the Clause is derived from its history.

“The underlying idea, one that is deeply ingrained in at

least the Anglo-American system of jurisprudence, is that

the State with all its resources and power should not be

allowed to make repeated attempts to convict an individual

for an alleged offense, thereby subjecting him to embarrass-

ment, expense and ordeal and compelling him to live in a

continuing state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent he may

be found guilty.” Green v. United States, 355 U. S. 184,

187-188 (1957); accord Scott, 437 U. S., at 87.

The history and purpose of the Clause have only limited use

in its modern application. “These historical purposes are

necessarily general in nature, and their application has come to

abound in often subtle distinctions which cannot by any means

all be traced to the original three common law pleas... .”

ee ee re ee ee) ee

Scott, 437 U. S., at 87. The problem is that modern criminal

procedure is radically different from criminal procedure at the

common law or the founding. * or example, the present case

turns on the meaning of the triai court’s response to the defen-

dani’s motion for a directed verdict at the close of the prosecu-

tion’s evidence, a procedure that did not exist at either the

common law or the founding. Directed verdicts first appeared

in criminal cases in this country in the Civil War and Recon-

struction era. See Phillips, The Motion for Acquittal: A

Neglected Safeguard, 70 Yale L. J. 1151, 1152, n. 8 (1961);

Sauber & Waldman, Unlimited Power: Rule 29(A) and the

Unreviewability of Directed Judgments of Acquittal, 44

Am. U. L. Rev. 433, 439 (1994). It was not codified by

Congress until the Criminal Appeals Act of March 2, 1907.

See Sauber & Waldman, supra, at 440. Much of this Court’s

precedent on acquittals and double jeopardy concerns the

prosecution’s right to appeal when the case ends in something

other than a judgment of guilt. See, e.g, United States v.

Martin Linen Supply Co., 430 U. S. 564 (1977); Smalis v.

Pennsylvania, 476 U.S. 140 (1986). The right to appeal is also

a relative latecomer to criminal procedure. The defendant had

no right to appeal in criminal cases until the late nineteenth

century, and the United States did not have a real right to appeal

until 1971. See Sauber & Waldman, supra, at 441. The lack

of government appeals stunted this Court’s analysis of acquit-

tals and their effects. See Scott, 437 U. S., at 89. This aspect

of double jeopardy law did not begin to develop until Congress

gave the United States full appellate rights in criminal cases in

1971 and the Double Jeopardy Clause was applied to the states

in Benton v. Maryland, 395 U. S. 784, 796 (1969). This leaves

a body of law not as well developed as that found in other

constitutional rights.

Fitting this ancient right to modern criminal procedure is

not always easy. The Double Jeopardy Clause is the ultimate

weapon of the criminal defendant. While a successful appeal

under other constitutional provisions such as the self-incrimina-

tion privilege, see Miranda v. Arizona, 384 U. S. 436 (1966),

or the right to effective counsel, see Strickland v. Washington,

466 U. S. 668 (1984), may vacate the conviction, retrial is still

allowed. The double jeopardy claim is one of the very few

constitutional claims that, if successful, precludes retrial and

ends any possibility of criminal liability.? This is a “drastic

sanction” that is “rarely seen in criminal law, even for constitu-

tional violations.” Reed v. Farley, 512 U.S. 339, 368 (1994)

(Blackmun, J., dissenting). This creates a fertile ground for

injustice if improperly applied.

A fundamental principle of double jeopardy law is that an

acquittal ends the prosecution, no matter how erroneous. Even

if an acquittal is “based upon an egregiously erroneous founda-

tion,” the prosecution is over, with no chance of correction

through appeal or retrial. See Fong Foo v. United States, 369

U. S. 141, 143 (1962) (per curiam); Arizona v. Rumsey, 467

U.S. 203, 211 (1984); Sanabria v. United States, 437 U.S. 54,

77-78 (1978). Similarly, double jeopardy jurisprudence gives

“absolute finality to a jury’s verdict of acquittal—no matter

how erroneous its decision... .” Burks v. United States, 437

U. S. 1, 16 (1978) (emphasis in original).

It can be unfair to society to lose forever the opportunity to

convict and punish a wrongdoer because of a mistake that is not

the prosecution’s fault. Society has a compelling interest in

catching, convicting, and punishing criminals. It is “ ‘[t]he

most basic function of any government’ [ ] ‘to provide for the

security of the individual and of his property.’ ” Jilinois v.

Gates, 462 U. S. 213, 237 (1983) (quoting Miranda, supra, at

539 (White, J., dissenting)). Trying and convicting criminals

is essential to this compelling interest. “Corresponding to the

right of the accused to be given a fair trial is the societal interest

in punishing one whose guilt is clear after he has obtained such

2. Otherclaims which preclude reprosecution are those involving the Sixth

Amendment right to a speedy trial, see Strunk v. United States, 412

U. S. 434, 439-440 (1973), or successful Ex Post Facto or statute of

limitation claims.

atrial.” United States v. Tateo, 377 U. S. 463, 466 (1964). The

Double Jeopardy Clause’s bar to retrial frustrates society’s right

to protect itself and obtain an accurate determination of the

defendant’s guilt. While “the Constitution conclusively

presumes” that placing the defendant twice in jeopardy is

unfair, see Arizona v. Washington, 434 U. S. 497, 503 (1978),

it is no less true that the Clause can create results that are unfair

to the state and unjust to society.

In most circumstances, applying the Double Jeopardy

_Clause to bar retrial causes no injustice. In a trial free of

erroneous and prejudicial rulings against the prosecution,

society’s interest in reviewing an acquittal is outweighed by the

interests protected by the Clause. Similarly, when the prosecu-

tion’s actions are intended to provoke a mistrial in order to

harass the defendant through multiple prosecutions, see United

States v. Dinitz, 424 U. S. 600, 611 (1976), any legitimate

interest in retrial is forfeited by the prosecution’s bad faith.

Double jeopardy creates a windfall for the defendant when

the acquittal comes from a mistake by the trial court. When the

prosecution’s case is compromised by the improper exclusion

of evidence during the trial, or an erroneous definition of the

offense leads to an incorrect directed verdict, the people are

deprived of their day in court. Since double jeopardy precludes

review of acquittals, see Martin Linen, 430 U. S., at 571, there

is no chance to correct the error. Although this result may be

compelled by the Double Jeopardy Clause, it is still unfair to

the public interest.

In other areas of constitutional law, errors not attributable

to the police or the prosecution will not justify overturning the

conviction. For example, the Fourth Amendment exclusionary

rule does not apply when officers rely in good faith on the

magistrate’s mistaken issuance of a search warrant. See United

States v. Leon, 468 U. S. 897, 921 (1984). It is also true that

the prosecution is penalized for the mistakes of others in

ineffective assistance of counsel cases, see Strickland, 466

U. S., at 686, but even there the prosecution still retains the

10

opportunity to retry the defendant. Only double jeopardy can

end a prosecution due to the mistake of the trial court.

Although a trial court’s mistake cannot by itself change the

result under the Double Jeopardy Clause, the extraordinary cost

of a successful invocation of the Clause should inform this

Court’s analysis. Fortunately, double jeopardy jurisprudence is

not formulaic, and there is a way to minimize the Clause’s cost

while retaining its essential protection.

Il. The Double Jeopardy Clause should only apply

when the interests it protects are clearly threatened.

The Double Jeopardy Clause is not absolute. There are

times when “a defendant’s valued right to have his trial

completed by a particular tribunal must in some instances be

subordinated to the public’s interests in fair trials designed to

end in just judgments.” Wade v. Hunter, 336 U. S. 684, 689

(1949). Since the Clause now extends to situations not covered

by its common law origins, see supra, at 7, it should be applied

more flexibly. This Court’s decisions demonstrate that the

Clause’s modern application can accommodate other needs.

United States v. Scott, 437 U. S. 82 (1978) demonstrates

this principle. At the close of evidence, the trial court granted

the defendant’s motion to dismiss two counts of the indictment

due to prejudicial preindictment delay. See id., at 84. The

government’s appeal was dismissed by the Court of Appeals on

double jeopardy grounds. /bid. This Court held that Double

Jeopardy did not bar the government’s appeal. See id., at 101.

While the principles of double jeopardy counsel that the

state should not be allowed to use its superior resources to grind

down the defendant through repeated retrial, see id., at 95, this

did not extend to situations where the defendant is responsible

for the termination of the charges. In that case, it “is scarcely

a picture of an all-powerful state relentlessly pursuing a

defendant who had either been found not guilty or who had at

11

least insisted on having the issue of guilt submitted to the first

trier of fact.” Jbid. Instead, the defendant chose “to avoid

conviction and imprisonment” by advancing “a legal claim that

the Government’s case against him must fail even though it

might satisfy the trier of fact that he was guilty beyond a

reasonable doubt.” Jbid.

Given the extreme consequences of a successful double

jeopardy defense, it must be clear that the case ended in an

acquittal before applying the Clause’s absolute protection. If

the Double Jeopardy Clause was applied to Scott’s case, then

“only the public has been deprived of its valued right to ‘one

complete opportunity to convict those who have violated its

laws.’ ” Jd., at 100 (quoting Arizona v. Washington, 434 U. S.

497, 509 (1978)). Since no interest protected by the Double

Jeopardy Clause was compromised by the appeal, see ibid.,

double jeopardy does not bar the government’s appeal “where

the defendant himself seeks to have the trial terminated without

any submission to either judge or jury as to his guilt or inno-

cence....” /d., at 101.

Scott partially overruled United States v. Jenkins, 420 U. S.

358 (1975). See 437 U. S., at 101. Jenkins involved a bench

trial in which the trial court “ ‘dismissed’ the indictment and

‘discharged’ the respondent” at the conclusion of the trial. See

420 U. S., at 359. The defendant had been indicted for

“ “knowingly refusing and failing to submit to induction into

the armed forces of the United States.’ ” Jbid. He moved for

acquittal based on United States v. Gearey, 368 F.2d 144 (CA2

1966), which held that an induction order was invalid if the

draft board did not postpone the order until it resolved the

registrant’s conscientious objector claim. See 420 U. S., at 361.

Gearey also held that the local board must reopen the regis-

trant’s classification if “the registrant’s conscientious objector

views had ripened only after he had been notified to report for

induction.” /d., at 361-362. Gearey was the law of the circuit

when Jenkins was ordered to report, but was overturned two

months later in Ehlert v. United States, 402 U. S. 99 (1971).

12

See 420 U. S., at 362. The District Court held that Gearey

applied to Jenkins’ case, since applying Ehlert would be unfair.

See ibid. In Jenkins, this Court addressed whether the govern-

ment could appeal the District Court’s decision. See id., at 360.

In the context of jury trials, differentiating between the

verdict and the court’s rulings of law is easy. /d., at 366.

However, in bench trials, these decisions are potentially much

harder to separate. See id., at 367. It was unclear in Jenkins

whether the District Court’s ruling resolved any or all issues of

fact in the defendant’s favor. See ibid. In this situation, a

successful government appeal would not reinstate a finding of

guilt since “there was no such finding, in form or substance, to

reinstate.” Jd., at 368. The rule “that the Double Jeopardy

Clause does not bar an appeal when errors of law may be

corrected and the result of such correction will simply be

reinstatement of a jury’s verdict of guilty or a judge’s finding

of guilt” did not apply in Jenkins “because of the uncertainty as

to the basis of the District Court’s actions here... .” Ibid.

Since there was no other valid reason for allowing the appeal,

it was barred by double jeopardy. See id., at 370.

Scott overruled Jenkins to the extent that it prevented the

government from appealing a midtrial dismissal that was sought

by the defendant and was unrelated to guilt or innocence. See

437 U. S., at 101. While this does not specifically reject

Jenkins’ approach to cases where the existence of an acquittal

is unclear, Scott also disapproved of Jenkins’ general approach

to the Double Jeopardy Clause. It found that the general

principle of double jeopardy cited in Jenkins, “is not a princi-

ple which can be expanded to include situations in which the

defendant is responsible for the second prosecution.” /d., at 95-

96. Similarly, “we believed we pressed too far in Jenkins the

concept of the ‘defendant’s valued right to have his trial

completed by a particular tribunal.’ ” /d., at 100-101 (quoting

Wade v. Hunter, 336 U. S. 684, 689 (1949)). Jenkins had to be

set aside because it expanded double jeopardy too far. The

13

Clause should apply only where its interests are clearly threat-

ened, which was not the case in Scott.

This Court’s other double jeopardy cases reflect similar

caution, invoking the Clause where the threat to the defendant’s

interests is clear, but not applying it where there is no such

threat. In United States v. Martin Linen Supply Co., 430 U. S.

564 (1977), the jury was discharged after seven days of

deadlock, and six days later a timely motion for acquittal was

filed. See id., at 566. Two months after that, the motion was

granted. See ibid. The question was whether double jeopardy

prevented an appeal of these orders, to which this Court

answered “yes.” See id., at 567. Martin Linen addressed the

“heart of [double jeopardy] policy . . . the concern that permit-

ting the sovereign freely to subject the citizen to a second trial

to a same offense would arm the Government with a potent

instrument of oppression.” /d., at 569.

In order for double jeopardy to apply, the defendant had to

meet two threshold conditions. First, the defendant must have

been placed in jeopardy, and second, the government appeal

must threaten successive prosecutions. See id., at 569-570.

Since there would be new proceedings if the government’s

appeal succeeded, see id., at 570, it was necessary to “inquire

further into the constitutional significance of a Rule 29(c)

acquittal.” Jd., at 571.

The constitutional effect of the District Court’s actions was

clear. It was an acquittal in both form and substance. /d., at

571-572. The existence of an acquittal turns on whether the

court’s action “whatever its label, actually represents a resolu-

tion, correct or not, of some or all of the factual elements of the

offense charged.” J/d., at 571. Here “it is plain” that the trial

court considered the evidence and determined that “it was

legally insufficient to sustain a conviction.” J/d., at 572.

Therefore double jeopardy barred the appeal.

The United States argued that only an acquittal verdict by

a jury warranted double jeopardy protection. See ibid. Since

14

directed verdicts of acquittal were given double jeopardy

protection, see Fong Foo v. United States, 369 U.S. 141, 142-

143 (1962) (per curiam), this argument was inherently untena-

ble. The government attempted to distinguish Fong Foo by

noting that in that case the jury was directed to submit an

acquittal. See Martin Linen, 430 U. S., at 573. Formalities like

this did not govern the Clause. What mattered was the effect of

the order on the interests protected by the Double Jeopardy

Clause. It was an acquittal which must be protected under

double jeopardy. Something as trivial as the timing of this final

order, see ibid., was irrelevant. If the government’s appeal

succeeded, the defendants would be tried again even though the

trial court had held that the government had failed to carry its

burden of proof and entered a final order dismissing the case.

If this order could not be respected under double jeopardy, then

there would be no reason to accord any respect to acquittals in

bench trials or directed verdicts of acquittals. Since judges

have the same power to acquit as juries, see United States v.

Sisson, 399 U. S. 267, 290 (1970), barring the government's

appeal was inevitable in Martin Linen.

Smalis v. Pennsylvania, 476 U. S. 140 (1986) involved a

similarly clear threat to the interests preserved by double

jeopardy. At the close of the prosecution’s case, the trial court

“dismissed certain charges against petitioners on the ground

that the evidence presented was legally insufficient to support

a conviction.” Jd., at 141. The case was a bench trial, and the

trial court dismissed those charges on the defendants’ demurrer.

See id., at 141-142. The Pennsylvania Supreme Court held that

this order was reviewable on appeal since a demurrer is a legal

ruling rather than a finding of fact. See id., at 142-143. Once

again, the case for applying double jeopardy was clear. A

ruling that as a matter of law the evidence is insufficient to

support a conviction was long considered an acquittal. See id.,

at 144. A successful appeal by the government would subject

the defendant to post-acquittal factfinding. Since this would

frustrate the defendant’s interest “in having an end to the

15

proceedings against him,” id., at 145, double jeopardy pre-

cluded the appeal of the demurrer. See id., at 145-146.

Other findings of double jeopardy violations by this Court

are also based on clear threats to the basic interests protected by

the Clause. Sanabria v. United States, 437 U. S. 54 ( 1978)

held that a government appeal from a midtrial exclusion of

evidence and subsequent acquittal was barred by double

jeopardy. See id., at 56,62. Although the exclusionary ruling

was erroneous and led to the acquittal, allowing an appeal of

this ruling would compromise double jeopardy principles. See

id., at 78. The government conceded this basic point, only

disputing whether it could retry the defendant on a different

theory of liability. See id., at 64-65. In essence, the govern-

ment argued that dismissing one theory of liability was “as if

the Government charged the crime in two counts and the

District Court had dismissed [one] count.” /d., at 65. The fatal

problem with this argument is that the government did not

charge two separate counts on two separate theories of liability.

Only one count was charged in the indictment, and it was

terminated by the District Court’s acquittal. See id., at 66-67.

Subjecting the defendant to a new trial for the same offense, but

on a different theory of liability unacceptably gives a second

bite at the apple to the prosecution, thus undercutting the

adversarial system. See id., at 78.

The fact that double jeopardy does not apply where these

basic interests are not threatened is further demonstrated in Lee

v. United States, 432 U. S. 23 (1977). The defendant was

charged with stealing two billfolds from a post office conces-

sionaire. See id., at 24-25. The relevant statute “require[d]

proof that the theft be committed knowingly and with intent to

deprive the victim of his property.” /d., at25. The information

did nct contain any allegation of knowledge or intent, which the

defendant pointed out to the trial court in a motion to dismiss

the information. This motion was made after the prosecutor’s

opening statement. See ibid. The District Court tentatively

denied the motion, and the defendant did not object to going

16

forward with the trial, so long as the District Court continued

to study the motion to dismiss. See id., at26. At the end of the

Government’s case, the defendant moved for acquittal. See

ibid. The defendant then rested without presenting any

evidence and the District Court considered the two motions. It

dismissed the acquittal motion, finding that the Government

had proven specific intent, but granted the motion to dismiss

because of the failure to charge knowledge or intent in the

information. /d., at 26-27. Lee was indicted and retried, id., at

27, and this Court held that double jeopardy did not bar a

second trial. /d., at 34.

The defendant claimed that he never should have been tried

in the first place, and that once tried he had a right to a final

determination of guilt or innocence by the jury. See id., at 27.

This was untenable. As the Governmerit pointed out, the

defendant invited this situation by filing the motion at the last

minute and allowing jeopardy to attach before a final ruling.

See id., at 28. In this situation, the interests protected by the

Double Jeopardy Clause did not bar retrial. See id., at 33-34.

A “bedrock” of the Double Jeopardy Clause is the defen-

dant’s interest in finality. See Hudson v. United States, 522

U. S. 93, 111 (1997) (Stevens, J., concurring in the judgment).

The proceedings against the defendant must end at some point

in order to prevent the government from prevailing due to

attrition rather than proof. See Green v. United States, 355

U. S. 184, 187-188 (1957). This protection is necessary in

order to prevent the Government from convicting the defendant

through the brute force of its vastly superior resources. See

ibid. Yet even this “bedrock” principle has its limits. As noted

in this brief, there are many instances in which the government

can retry the defendant even though jeopardy had already

attached. Successful defense appeals unrelated to proof of

guilt, dismissal of indictments or information, and most

mistrials are a few examples. In theory, the Government has

the right to retry the defendant an unlimited number of times so

long as the reason for terminating the trial is not an acquittal or

17

its functional equivalent.’ A defendant in this situation could

be worn down by retrial just as effectively as if the Government

could retry acquittals.

This Court’s precedents draw a line between prosecutions

ending in acquittals and those ending for other reasons, giving

acquittals a “particular significance .. . .” Scott, 437 U. S., at

91. While the effect of a retrial on the defendant is the same in

both cases, only acquittals are considered final under double

jeopardy. In part, this reflects the Clause’s roots in the common

law plea of prior acquittal. This can only be a partial explana-

tion, however, because criminal procedure and the scope of

double jeopardy’s protection have greatly expanded beyond the

Clause’s roots. Cf. id., at 87 (noting the expansion of criminal

procedure since the common law and a modern double jeopardy

jurisprudence removed from the common law pleas). Nor is it

enough to say that by achieving a verdict of acquittal, the

defendant has “won” the case. Guilty verdicts do not end the

case as they are subject to appeal by the defendant, and the

government may appeal adverse final orders that are not

equivalent to acquittals. See Scott, supra, at 101. Acquittals

are the only final orders that cannot be appealed by the losing

party.

The distinction between acquittals and orders which end the

trial but allow retrial is based on necessity. Preventing retrial

whenever the defendant prevails is simply too expensive to

justice and society. The people have a right to their day in court

and an opportunity to convict the defendant. See id., at 100. “It

would be a high price indeed for society to pay were every

accused granted immunity from punishment because of any

defect sufficient to constitute reversible error in the proceedings

3. Ifa mistrial is declared due to an error “motivated by bad faith or

undertaken to harass or prejudice,” then retrial is barred by double

jeopardy. See United States v. Dinitz, 424 U. S. 600, 611 (1976).

Therefore a prosecutor could not provoke a mistrial through error

intended to wear down the defendant through repeated retrial.

18

leading to conviction.” United States v. Tateo, 377 U. S. 463,

466 (1964).

Limiting double jeopardy to acquittals pays respect to the

Clause’s common law roots, and maximizes its utility to

society. Since a primary purpose of the Clause is protecting the

innocent, it makes sense to limit its protections to those most

likely to be innocent, the acquitted. By concentrating its

powerful benefits on the most deserving, double jeopardy’s

costs are reduced while maintaining most of its benefits.

This approach should also be applied to the definition of

acquittal. While this Court’s cases show that in most cases it

is relatively simple to determine whether there is an acquittal,

see supra, at 10-18, more difficult cases do happen. In those

cases, double jeopardy should not apply unless the case for its

application is clear. If it is unclear whether the interests

protected by double jeopardy are threatened by the action in

question, then the Clause’s extraordinary sanction should not

apply.

It is entirely proper to consider the costs of applying a

constitutional provision as a factor in determining the relevant

standard. Cost-benefit analysis is most explicit in Fourth

Amendment decisions determining the reasonableness of a

search or seizure. See Hiibel v. Sixth Judicial District Court,

542 U.S. _, 159 L. Ed. 2d 292, 304, 124 S. Ct. 2451, 2459

(2004). Similarly, the extraordinary remedy of the exclusionary

rule is not applied when its costs exceed its benefits. See

Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S.

357, 363 (1998). Practical considerations also inform the test

for determining ineffective assistance of counsel. An important

consideration in the creation of this standard was to prevent an

excessively intensive inquiry into defense counsel’s conduct

from harming counsel’s performance or willingness to represent

criminal defendants. See Strickland v. Washington, 466 U. S.

668, 690 (1984). Therefore, the Strickland standard was

“highly deferential” to defense counsel’s conduct of the

defense. See id., at 689.

_—

19

While the Constitution does not bend and sway with every

societal need, practical considerations are relevant to constitu-

tional standards. An important consideration in administering

constitutional criminal procedure is keeping criminal defen-

dants from benefitting from undeserved windfalls. See, e.g.,

United States v. Salvucci, 448 U. S. 83, 95 (1980); Mickens v.

Taylor, 535 U.S. 162, 173 (2002); Lockhart v. Fretwell, 506

U. S. 364, 366 (1993). Applying double jeopardy’s absolute

prohibition against retrial in cases where its need is not clear is

a windfall to the lucky defendants. Limiting double jeopardy

to cases where it is unquestionably necessary appropriately

keeps defendants from getting windfalls while retaining the

essential benefits of the Clause.

III. There is no threat to the interests protected by the

Double Jeopardy Clause that justifies invoking the

Clause in this case.

The trial court’s action did not threaten any of the defen-

dant’s double jeopardy interests in this case ~~» trial court’s

first ruling mistakenly concluded that the Peopic, as a matter of

law, had not proven the firearms offense. It then corrected this

mistake before the case was submitted to the jury. See supra,

at 3. While the defendant was briefly “freed” from the weapons

charge, the trial court’s mistake and decision to correct it did

not influence the jury or adversely affect the defense. There is

no reason to believe that the defendant was in any way preju-

diced by the trial court’s actions.

The primary interests protected by the Clause are set forth

in the famous passage from Green v. United States, 355 U. S.

184, 187-188 (1957), quoted supra, at 6. Upholding the trial

court’s action in this case will not give the government a tool

“to make repeated attempts to convict an individual for an

alleged offense ....” Jd., at 187. Most importantly, the trial

court’s decision did not give the prosecution another bite at the

apple. While the prosecution was able to convince the trial

20

court that its legal ruling was incorrect, the trial court’s action

did not allow the government to reprove its case. A procedure

is less likely to violate double jeopardy if it does not require

additional factfinding. For example, if a government appeal

does not threaten a successive prosecution, then it is not barred

by double jeopardy. See United States v. Martin Linen Supply

Co., 430 U. S. 564, 569-570 (1977). As this Court noted in the

context of the Government’s right to appeal, “where there is no

threat of either multiple punishment or successive prosecutions,

the Double Jeopardy Clause is not offended.” United States v.

Wilson, 420 U. S. 332, 344 (1975) (footnote omitted).

In Wilson, the District Court dismissed the indictment for

prejudicial delay after the jury returned a guilty verdict. See id.,

at 333. Double jeopardy did not bar an appeal of this ruling.

See ibid.

“Although review of any ruling of law discharging a

defendant obviously enhances the likelihood of conviction

and subjects him to continuing exposure and anxiety, a

defendant has no legitimate claim to benefit from an error

of law when that error could be corrected without subject-

ing him to a second trial before a second trier of fact.” /d.,

at 345 (footnote omitted).

Similarly, the trial court’s decision in this case did not require

a new jury to be empaneled or new proof to be heard. While

the defendant was now exposed to liability on the gun charge,

his defense to that claim was not prejudiced. “This is scarcely

a picture of an all-powerful state relentlessly pursuing a

defendant who had either been found not guilty or who had at

least insisted on having the issue of guilt submitted to the first

trier of fact.” United States v. Scott, 437 U. S. 82, 96 (1978).

It is possible that an action terminating the prosecution may

be protected under double jeopardy even when reversing the

action would not require new factfinding. In Martin Linen, this

Court was adamant that the timing of an order . as irrelevant to

whether double jeopardy made the order unreviewable. See

21

430 U. S., at 573-575. It could be argued that this principle and

the “particular significance” that the law attaches to acquittals,

see Scott, 437 U. S., at 91, could render a judicially ordered

acquittal issued after a guilty verdict immune to review. This

hypothetical does not change the analysis here, and the question

need not be resolved to decide this case.

The hypothetical above addresses finality, the other main

interest protected by double jeopardy. A “primary purpose” of

the Double Jeopardy Clause is to “preserve the finality of

judgments.” Crist v. Bretz, 437 U. S. 28, 33 (1978). In the

hypothetical, the judge’s order would be considered final and

it could be argued that the defendant should be allowed to rely

onit. Therefore, double jeopardy would protect the integrity of

a judgment of acquittal that is meant to be final.

The present case does not raise such finality issues. In order

for an action to be deemed an ar juittal under double jeopardy,

it first must be final. This can be an acquittal order entered

after a hung jury is discharged, see Martin Linen, 430 U. S.., at

565-566, an order directing a verdict of acquittal at the conclu-

sion of the prosecution’s case, see Fong Foo v. United States,

369 U.S. 141, 142-143(1962) (per curiam), or dismissing some

charges as unsupported by the evidence at the end of the

prosecution’s case and holding the other charges in abeyance

pending appeal of the demurrer. See Smalis v. Pennsylvania,

476 U. S. 140, 141-142 (1986); see also Commonwealth v.

Smalis, 480 A. 2d 1046, 1048, n. 1 (Pa. Super. 1984). In these

cases the action deemed an acquittal effectively ended the

prosecution with respect to the dismissed charges. While this

is most evident in Martin Linen and Fong Foo it is also true in

the unusual facts of Smalis, as the trial court’s decision to hold

the other changes in abeyance pending the appeal of the

demurrer demonstrates that the demurrer was final with respect

to those dismissed charges.

The trial court’s actions in this case show that the initial

dismissal of ue gun charge was not a final judgment that

warrants double jeopardy protection. The decision to correct

22

the legal error underlying the initial dismissal is no different

than a court granting a motion to reconsider and reversing its

initial ruling. Double Jeopardy should not prevent a court from

reconsidering a ruling, so long as the initial ruling is not yet

final.

Appellate procedure helps demonstrate this principle. This

Court and the federal circuit courts have the jurisdiction to

reconsider their rulings upon a timely motion for rehearing.

See Supreme Court Rule 44; Fed. Rule App. Proc. 40. When

an appellate or habeas court rules that the evidence was

constitutionally insufficient to convict, see Jackson v. Virginia,

443 U. S. 307, 324 (1979), double jeopardy precludes retrial.

See Burks v. United States, 437 U.S. 1, 18 (1978). While such

rulings preclude retrial, double jeopardy does not prevent this

Court or a federal circuit court from reversing an initial ruling

of insufficient evidence to convict after a timely motion to

rehear. Similarly, a federal circuit court’s finding of insuffi-

cient evidence does not preclude review of that decision by this

Court. When this Court overruled a federal circuit court for

improperly granting habeas under Jackson, see Wright v. West,

505 U. S. 277, 295-297 (1992) (plurality opinion), double

jeopardy was not even mentioned. While an acquittal is

constitutionally significant under double jeopardy, it is only

significant when it is final. The trial court in this case should

be similarly unconstrained by double jeopardy to reconsider its

initial incorrect decision on the sufficiency of the evidence.

The trial court’s actions in this case indicate that it did not

consider its initial action to be final. It is true that how a court

labels its action is irrelevant to the double jeopardy analysis.

See Martin Linen, 430 U. S., at 571. However, whether the

trial court treated its first decision as final is relevant to whether

that decision was in fact final. The initial dismissal was not

final under Massachusetts procedure, since a Massachusetts

judge has the power to reconsider the decision while the case is

pending. See Commonwealth v. Smith, 788 N. E. 2d 977, 983

(Mass. App. Ct. 2003). As the dismissal of the weapons charge

23

was reversed before the case was submitted to the jury, this

decision was not final for the purpose of double jeopardy. Nor

is this an attempt to manipulate procedural rules in order to

avoid the Double Jeopardy Clause. For example, a state ruling

declaring that acquittals are not final until reviewed by an

appellate court would violate double jeopardy. Allowing a

court to review its own ruling is a traditional practice that does

not violate the Clause.

The fact that this initial ruling would be considered an

acquittal, had it not been reconsidered by the same court, is thus

irrelevant to the double jeopardy analysis. The term “acquittal”

“has no talismanic quality for purposes of the Double Jeopardy

Clause.” Serjass v. United States, 420 U. S. 377, 392 (1975).

“[W]hat constitutes an ‘acquittal’ is not to be controlled by

the form of the judge’s action. [Citations.] Rather, we

must determine whether the ruling of the judge, whatever

its label, actually represents a resolution, correct or not, of

some or all of the factual elements of the offense charged.”

Martin Linen, 430 U. S., at 571 (emphasis added).

Just as a judge can reconsider a dismissal of a charge, a jury

can reconsider an acquittal until the verdict is final. The

Federal Rules of Criminal Procedure allow the jury to be polled

after a verdict is returned. See Fed. Rule Crim. Proc. 31(d).

This procedure is not limited to guilty verdicts. “After a verdict

is returned but before the jury is discharged, the court must on

a party's request, or may on its own, poll the jurors individu-

ally.” Jbid. (emphasis added). If the jury is polled after an

acquittal is announced and a juror disagrees with the not guilty

verdict, double jeopardy does not bar retrial because the

acquittal was not final. See United States v. Love, 597 F. 2d

81, 85-86 (CA6 1979); United States v. Anzalone, 886 F. 2d

229, 230-231 (CA9 1989); State v. Bell, 322 N. W. 2d 93, 95-

96 (lowa 1982). No order or verdict is recognized under double

jeopardy until it is final. Since the trial court’s initial order was

not final, the decision to reinstate the weapons charge did not

violate double jeopardy.

24

The defendant’s arguments do not address this central issue.

His assertion that United States v. Jenkins, 420 U. S. 358

(1975) and Swisher v. Brady, 438 U. S. 204 (1978) prevent

supplemental findings after a “true acquittal,” see Pet. Brief 25,

ignores finality. In Jenkins, the acquittal was the clearly final

order of the District Court discharging the defendant after a

bench trial, see 420 U. S., at 359. Swisher supports the state’s

position in this case. In Swisher, the special master’s hearing

and the reconsideration by the judge were a single proceeding

which did not violate double jeopardy, 438 U. S., at 215-216,

just as the consideration and reconsideration of a motion by the

judge in this case did not.

Other assertions by the defendant are similarly irrelevant in

the context of this case. He claims that once a judge or jury

“truly acquits” the defendant, further government attempts to

convict the defendant are forbidden no matter what form they

take. See Pet. Brief 31. He cites United States v. Jenkins,

Smalis v. Pennsylvania, 476 U. S. 140 (1986); Burks v. United

States, 437 U.S. 1 (1978), and Sanabria v. United States, 437

U. S. 54 (1978) for this point. See Pet. Brief 31. Like Jenkins,

Smalis, Sanabria, and Burks all involve unquestionably final

acquittals. See Smalis, supra, at 141-142 (appeal, dismissal of

prosecution on the ground that the evidence is legally insuffi-

cient to support prosecution done at the end of a bench trial);

Sanabria, supra, at 56, 62 (appeal of midtrial exclusion of

evidence and subsequent acquittal); Burks, supra, at 2 (at-

tempted to retry after appellate reversal for insufficient evi-

dence to convict). These cases involve attempts to get another

court to reopen a final order acquitting the defendant, which

makes them inapplicable to this case.

Similarly, Burks cannot support the defendant’ s remarkable

assertion that double jeopardy bars the trial court’s power to

rehear a case. See Pet. Brief 32. Burks’ holding that double

jeopardy prevents a retrial after an appellate acquittal is not

relevant to this point. The defendant’s other support for his

claim that there is “no constitutional, statutory, or common law

25

power to rehear an acquittal,” Pet. Brief 32, citing United States

v. Sanges, 144 U. S. 310, 315 (1892), is no better. Sanges

addressed whether there was appellate jurisdiction over a

government appeal of an order quashing an indictment. See id.,

at 310-311. That case was decided before Congress generally

authorized government appeals in criminal cases, and this Court

held that there was no jurisdiction to hear an appeal in a

criminal case. See id., at 323. The passage cited by the

defendant is a long quotation from State v. Jones, 7 Ga. 422,

424, 425 (1849); see Sanges, supra, at 315. Its denial of aright

to rehearing is made in the context of final orders. “If the effect

of the judgment is a discharge, then there can be no rehearing,

either by a new trial or writ of error.” Sanges, supra, at 315

(emphasis added) (internal quotation marks omitted). Even this

relic from the prehistory of government appeals in criminal

cases cannot support the defendant.

Nor can the defendant claim that he was prejudiced by this

ruling. The Massachusetts appellate court held that the

defendant was given the option to reopen the defense after the

gun charge was reinstated, but declined the offer. See Smith,

788 N. E. 2d, at 983. The defendant asserts that the transcript

conclusively demonstrates that Smith “was not ‘provided the

opportunity to reopen’ in the wake of the judge’s reconsidera-

tion” of the dismissal of the gun charge. See Pet. Brief 34

(emphasis in original). Since the trial court denied the prosecu-

tion’s motion to reopen after its initial dismissal of the weapons

charge, see J. A. 21-22, the defendant claims that he had no

chance to reopen the case after the trial court reinstated the

charge. See Pet. Brief 34. This assertion overlooks the fact

that Smith never asked the trial court to reopen his case. In his

two efforts to get the trial court to reverse its decision reinstat-

ing the weapons charge, he never asked to reopen the case, and

did not indicate that his defense to this charge had been

compromised. After the trial court reinstated the charges,

defense counsel wished to argue other reasons for dismissal

contained in his motion to dismiss, see J. A. 75-76, and the trial

court responded by denying the motion to dismiss. See id., at

26

76. There was no request to reopen the case. The defense’s

subsequent request for the trial court to reconsider argued that

the prosecution had not, as a matter of law, carried its burden

of proving the weapons charge, but did not ask to reopen the

defense or indicate that it was prejudiced by the reinstatement

of the charge. See id., at 81-82. Any claim of prejudice was

waived by trial counsel.

The trial court’s first order did not resolve the case in the

defendant’s favor because it was not final. This trial court’s

actions did not threaten either the defendant’s interest in finality

or in avoiding retrial. Since there is no clear threat to either

interest, the extraordinary remedy of the Double Jeopardy

Clause should not be applied to immunize the defendant from

a charge of which he is clearly guilty.

CONCLUSION

The decision of the Appeals Court of Massachusetts should

be affirmed.

November, 2004

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation