Petition for Writ of Certiorari — Michigan v. Williams (No. 08-1103)

IN THE 10.3 oe

SUPREME COURT OF THE United ork the 79 OWS

OCTOBER TERM, 2008

No. OFFICE () - r-4 $

THE PEOPLE OF THE STATE OF MICHIGAN

etitioner

CHRISTOPHER JAMAL ANDERSON WILLIAMS

PSDOTI CE

f

KYM [

Wavne Count

TIMOTHY A. BAU

Chief of Rese arch, 1{rall

lith Floor, 1441 St. Antoins

Detroit, Michigan 4822

Phone: (313) 833-349¢

*

Counsel! of Record

\TEMENT OF THE QUESTION

lecisions holding that the direction

verdict of acquittal by a trial judge,

iking the case from the jury, based on

erroneous understanding of that

vhich constitutes the elements of the

ense, constitutes an acquittal barring

etrial, conflict with United States v.

Vartin Linen Supp/y, and if not, should

ise be reconsidered?

‘able

of Contents

INDEX OF AUTHORITIES

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J

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~

pe

=

677 F.2d 427. 452-53(CA 5. 1982)

Comm nweath V Hosmer

727 NE2d 537 (Mass. App. 2000)..

Fong Foo v United States,

369 US 141 (1962)

Green v United States,

355 US 184(1957).............. oe ee El PLE ete

Sanabria v United States,

gi 0.2." (ls |

Sedgwick v. Superior Court for the District

Columbia,

584 F.2d 1044, 1049(CA DC, 1978) .....

State v. Korsen

69 P.3d 126 Udaho.2003)....... PO a Ee

State v Lynch,

399 A.2d 629 (NJ, 1979)

State v Portock,

501 A2d 551 (Ny. Super. App. Div, 1985)

State v Saxton

724 So.2d 77 (Ala Cr App 1998)

( nited States v. Dahlstrum

655 F.2d 971,.974(CAQ. 1981)

L&

United States v Maker,

751 F.2d614(CA3, 1984)................ RAR cctai

United States v. Martin Linen Supply Co,

430 US 564 (1977) . 2

United States v. Moore.

613 F.2d 1029, 1037 (CA DC, 1979) ................15

Other

Blackstone’s CommMmentaQPles..........ccccccceccecceuceccecuceecess 16

"Directions for Directed Verdicts

A Compass for Federal Courts,"

step i ROD es A EOS 8) 2)

Henderson, "The Background of the Seventh

Amendment," 80 Harv L Rev 289 (1966)....... 2)

Story, 3 Commentaries on the Constitution,

Westen and Drubel, "Toward A General Theory of

Double Jeopardy," 1978 Sup Ct Rev 81

Pe eee oe 2]

"The Double Jeopardy Clause of the Fifth

Amendment,"

26 Am Crim L Rev 1477, 1479 (1989)............ 17

"Power and duty of court to direct or advise

acquittal in criminal case for

insufficiency of evidence," 17 ALR910.......... 21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2008

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner,

CHRISTOPHER JAMAL ANDERSON WILLIAMS

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE MICHIGAN COURT OF APPEALS

NOW COMES the State of Michigan, by KYM

L, WORTHY, Prosecuting Attorney for the County of

Wayne, and TIMOTHY A. BAUGHMAN, Chief of

Research, Training, and Appeals, and prays that a

Writ of Certiorari issue to review the judgment of the

Michigan Court of Appeals, entered in this cause on

October 23, 2008, leave denied by the Michigan

Supreme Court on January 9, 2009.

OPINIONS BELOW

The opinion of the Michigan Court of Appeals

is unpublished, and appears as Appendix A. The

order of the Michigan Supreme Court denying leave

to appeal appears as Appendix B.

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28

USC §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in pertinent part:

...nor shall any person be subject for the

same offence to be twice put in jeopardy

The Fourteenth Amendment to the United

States Constitution provides, in pertinent part:

....No state shall make or enforce

any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any state

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protection of the

laws.

.s

STATEMENT OF MATERIAL FACTS

AND PROCEEDINGS

Respondent was charged with criminal sexual

conduct in the third degree under Michigan law, the

victim being 13 years at the time of the charged

sexual penetration, and 16 years old at the time the

event was charged. The preliminary examination

was held on February 12, 2006. At the examination

the complainant, Jasmine Grady, testified that the

sexual penetration, which she _ testified was

consensual, occurred on February 22, 2004,

answering the prosecutor’s questions as to “what

happened” on that date (R,PE 5-10). On cross:

examination, she testified that she was certain the

date was in fact February 21, 2004 (R,PE 12-13).

She said the episode occurred a week after

Valentine’s Day (R,PE 13). When moving to bind

over the prosecutor moved to amend the charges to

state the offense occurred on February 21 (R,PE, 32), —

and the examining magistrate bound over for trial

(R,PE 33).

At trial, when asked the date of the event on

direct examination, Ms. Dorsey replied that it was

February 22, 2004 (R,I, 43). When the prosecutor

asked if she was guessing because she was

hesitating, Ms. Dorsey replied that she hesitated

because she was “thinking to make sure I had the

right date” (R,I, 43). When questioned about the

discrepancy, she said that before she testified at the

examination she had checked the calendar and

“thought it was before, like a week before Valentine’s

Day. Well, it happened after Valentine’s Day. My

bad” (R,I, 79-80). When asked if she had been sure at

that time it was the 21" she answered “no,” and said

she was taking a guess at that time (R,I, 81).

On brief cross-examination, on this point Ms.

Dorsey agreed with defense counsel that if unsure of

a date she should answer that she was not sure (RII,

&, 3

11-12). Defense counsel concluded this portion of

cross by asking “You know regardless of the date you

have accused this man of placing his penis in your

vagina, correct?” and “And regardless of the date you

know that you were thirteen years old when he said

that, right?”, receiving affirmative answers to both

questions (R,II, 13). Counsel later returned to the

point, asking the complainant to explain why she had

said she was certain that the act happened on the 21"

when she testified at the examination (R,II, 79-80).

Counsel asked Ms. Dorsey to be “very careful and tell

me which one is correct,” and she answered “the 22”

(R,II, 81). To the question “why didn’t you simply say

I don’t know the date?” she answered “I don’t know”

(RII, 81). On re-direct, Ms. Dorsey said she was not

lying at the examination, but mistaken (R,II, 90). On

re-cross she again stated she was mistaken and

should not have said she was certain of the date at

the examination (R,II, 135-136). She was now

certain the date was the 229 (RII, 136-138).

The trial proceeded with several other

prosecution witnesses, and at the close of the

prosecution’s case the prosecutor moved to amend the

information as to date (R,III, 131). Before the court

ruled, defense counsel moved for a directed verdict,

premising the motion on the discrepancy between the

dates (R,III, 135 -ff). Counsel argued that the jury

could not find beyond a reasonable doubt based on

Ms. Dorsey’s testimony that the crime occurred on

February 21, 2004, the date charged, and “This is a

criminal sexual conduct case. Time is of the essence”

(R,III, 136). Because, said counsel, the information

did not say “on or about,” a directed verdict of

acquittal was required (R,III, 137). The prosecution

then continued its motion to amend, requesting a

“range” as to when the offense was committed of

February 14-28, 2004 (R,III, 139-140). The trial

judge responded that “This isn’t some eight year old

little kid whose getting up there and can’t remember

a.

dates” (R,II], 140) (the victim was 13 at the time of

the offense, which had occurred three years

previously). The prosecutor pointed out that statute

provides for amendment of the information for “any

defect, imperfection, or omission in torm or

substance, including a variation between the

information and the proofs as long as defendant is

not prejudiced by the amendment and it does not

charge a new crime. This clearly happened in

February some time” (R,III, 141).

After a recess the court asked “let’s say he had

an alibi defense” and the prosecution in that case

moved to amend (R,III, 144), and the prosecutor

pointed out that there was no alibi in this case (R, III,

145). The trial judge asked defense counsel to

respond to an appellate case which said that

inconsistences in date go to weight of the testimony

(R,III, 147). The thrust of counsel’s response was

that having alleged a specific date, the prosecution

was required to prove the offense occurred on that

particular day (R,III, 147-149). All the prosecution

had to do, counsel asserted, was charge a range from

the beginning (R,III, 149), or use the phrase “on or

about” (R,III, 151-152). The only prejudice counse]

articulated from the amendment was not prejudice to

the presentation of a defense, but that if the motion

was rot granted, “we win here today. If you don't

grant this motion you must grant the directed

verdict” (R,III, 151). Counsel said “We’ve been laying

on this from day one” (R,III, 153). When the trial

judge brought up prejudice from the amendment

(‘the prejudice to the defendant in preparing a

defense,” R,III, 155), counsel responded “We about

ready to win this case if you don’t grant that motion”

(R,III, 155) as his declaration of “prejudice.” The

prosecution argued that even if the amendment was

denied the date of the offense was not an element, the

a,

jury would not be instructed the prosecut‘on had to

prove the offense occurred on the specific date alleged

in the information, and the directed verdict should be

denied in any event (R,III, 160-163).

The trial court denied the motion to amend,

saying “it’s not about credibility. It’s not about

finding of facts. It’s about fairness” (R,III, 166). The

court held that “I don’t think it’s in the interest of

justice at this late stage of the game to grant the

amendment” (R,III, 168). As to the directed verdict,

the court held that “time is absolutely of the essence

in a case like this,” and granted the motion (R,III,

170). Nothing was ever said about prejudice to the

respondent in the presentation of or preparation for

his defense.

Petitioner appealed. The Michigan Court of

Appeals affirmed, finding that the appeal was barred

as further proceedings at trial were precluded by

double jeopardy, concluding that the actions of the

trial judge constituted an acquittal. That court said

“In the case at bar, the trial court denied plaintiffs

motion to amend and then acquitted defendant,

operating under the erroneous belief that time was

an essential element of the CSC charge. It is true

that time is not an essential element in CSC cases

involving minor victims.. ..However, the trial court's

finding that the prosecution had _ presented

insufficient evidence to sustain a conviction—even if

technically incorrect—constituted an acquittal on the

merits for double jeopardy purposes” (see appendix

A). Petitioner’s application for leave to appeal to the

Michigan Supreme Court was denied on January 9,

2009.

-10-

Reasons for Granting the Writ

A. The Misinterpretation of Martin Linen

One thing is clear in this case: no defense wish

to have this case determined by the jury was

thwarted, the defense seeking—successfully——to

avoid a jury resolution of the case by having the trial

judge take it from the jury. The case involves no

attempt to harass the respondent through repeated

prosecutions, as all the petitioner seeks is one full

and fair opportunity to have the case decided by a

jury.

The trial judge purported to direct a verdict of

acquittal because of a variance in the proofs as to the

time of the offense of one day, refusing a motion to

amend on the mistaken ground that “time was of the

essence” with regard to the charge. Though agrecing

that the trial judge erred, the Michigan Court of

Appeals nonetheless found retrial barred by

principles of double jeopardy:

In the case at bar, the trial court denied

plaintiffs motion to amend and then

acquitted defendant, operating under

the erroneous belief that time was an

essential element of the CSC charge. /t

is true that time Is not an essentia/

element in CSC cases involving minor

victims.. . . However, the trial! court’s

finding that the prosecution had

presented insufficient evidence to

sustain a conviction—even if technically

incorrect—constituted an acquittal on

the merits for double jeopardy purposes.

(Emphasis supplied, see Appendix A).

Thus, though the Michigan Court of Appeals

held that time was not an “essential element of the

offense” (it is not an essential element of virtually

any offense: the time alleged in the charging

document may bring up issues with regard to notice,

variance of the proofs, and amendment of the

charging documents factual averments, but time

would only very rarely be an actual “element” of the

offense). The trial of this matter was aborted, then,

on defense request, on the conclusion of the trial

judge that the prosecution had not presented

evidence as to a matter that is not an element of the

offense. And yet the Michigan Court of Appeals has

found retrial precluded by principles of double

jeopardy as expounded by this Court. But this is

actually inconsistent with this Court’s decision in

United States v. Martin Linen Supply, 430 US 564

(1977) and confuses the “elements” of a crime with

the factual averments made in the charging

document, and Martin Linen is not concerned with

the latter. Because that decision is sometimes (as

here) misread as going to the factual averments of

the charging document, or as precluding retrial when

a purported directed verdict of acquittal is granted by

finding proofs insufficient on an “element” which is

not an element (again, as here), certiorari should be

granted to clarify the meaning of Martin Linen

Supply. Further, the opportunity should be taken to

reconsider that decision, as a finding that no

reasonable jury could find guilt proven beyond a

reasonable doubt should be viewed as a ruling of law

terminating the trial, and one sought by the defense,

and not an “acquittal” for doubie-jeopardy purposes.

In Martin Linen this Court said that a

termination by the trial judge of a trial by way of a

purported directed verdict of acquittal (or whatever

the label given) constitutes an acquittal for purposes

me is

o

» offen i qu n o} ,

rre nd ti! Michi

.*T [ t { ‘ rie

leTe | i il i

bes iborted t o1

yuittal,” barring retrial, |

nD re ] ne m I

| } Va j [ i

[ ‘ urt I not i nstruct

SUDDIVS 11a ed

Other t ne riking

i ivi if tn er! | M i é

Lp] in ¢ 1u if Q¢

Mas Ap] () ly I neg t! Xa

I Commonwealth Tir vitne

i imend eflect t it

Nnargea id rr ] iriier ti

I Ping 1OCcU } Wel il I

‘ udge denied t noti ind termunat

The Commonwealtl K led nap]

ive uttered, “not gu he left

th District ¢ irt docké t La

finding of not gu

‘he Court of Appea ig? i that

findir f not guilty, principles of d

prevent retrial of th lefendant

harge But, said the court. “liln .

xact nature of the action taken by the Di

judge we are not bound abe

on a form, but we inquire wheth tl

resolution of any of the facts that make uy

charged. We conclude that the judge d

Commonwealth's complaint

¥ | ry |

! t ]

\ I naracterizZ I | I i i

yultt id aborted the ti i Ug

re Va i Tat iriaNns I CW I I a rn

npiall ind he [ 1a n } perr t 4

imendment of th he true nature of th

idge's t therefor Wa t 1ismi1s

mpliaint w preyudl n lignt rt lefe!

tion 1a nN) i, th l round lappropria

en tna ner Na not la prejudice !

lefendant flowing f 1one-da in la

ny n Hos $

Pre is [ I L) lel LT = i l

in V\ been | yr on t > from day «

vw hicl intort ite] the tria ige bough nt

KIT inerroneou il ruling that had nothing t

10 wit! re lutio! rrect orn me or all

lement yt th tfen harged. The Michigar

(Ala.Cr.App.1998) (In £x parte Wood, the Alabam

ipreme Court held that double jeopardy principk

} | |

gid not Dara re rial of a defendant wh se motion Io

iriance between the indictment and the eviden

the State presented

Where the elements f thi iffense art

misperceived by the trial judge, who finds a lack

videncs n something that 1s not actually an

element, jeopardy should not bar retrial. In Unit

Olales \ Maker. 751 k 2d 614 \ 19R4

pointing LO several I S/ VUarti Linen Su; Diy

decisions (Carter v. Este/le, 677 F.2d 427, 452-53 (CA

+ 1982) [ nited States } Dahistrum 655 I Z i 97]

974 (CA 9, 1981); United States v. Moore, 613 F.2d

1029 1037 (CA DC,1979 Sedeowi k 4 Supe ry}

Court for the District of Columbia, 584 F.2d 1044

1049 (CA DC, 1978)), found that the “generally

understood the test to require an acquit |

when, in terminating t he pr ceeding, the trial court

actually resolves in favor of the respondent a factual!

element necessary for a criminal conviction.” 75]

F.2d at 622. Thus the appeal of the government

the case before it, the court concluded, was “barred

nly if the district court's legal determination about

the elements of a single scheme conviction is correct

751 F.2d at 623. Because that ruling was incorrect

the trial court misunderstanding the actual! elements

of the offense, the government appeal, and retnal

were not precluded by jeopardy

Similarly, in State v. Korsen 69 P.3d 126

(Idaho,2003) the State appealed, and it was alleged

that because jeopardy barred a retrial, appeal was

not permissible. The court disagreed—citing the test

of Martin Linen Supply the court found that the

lower court "as a result of legal error, determined

that the government could not prove a fact that 1s not

necessary to support a conviction,’ so that what had

occurred was not an acquittal, and appeal was thus

not barred. 69 P.3d at136.

On the other hand, in State v Lynch, 399 A.2d

629 (NJ, 1979) the New Jersey Supreme Court found

that jeopardy barred a retrial even though the trial

court had “added” an element to the offense, and

found the evidence insufficient on this pseudo-

element. See also State v Portock. 501 4.2da 551 (NY

Super. App. Div., 1985)(finding Maker on point, but

, ; t New Jersey Supreme

rted mpan\ with the Maker court's

rmination That No Reasonable Juror

‘ BY

Could Find Guilt Bevond a Reasonable Doubt

1 Ruling of Law That Mav Be Mistaken

ts Asse sment ot the facts or the

iW T K

he prohibition in the federal constitution

louble pardy wa is IS commonly

; | , ‘ ‘" rly

inderstood, derived from the common-law Englisl

pleas tf autrelois acquit and autreiol convict

icKST ‘ tated that

tine piea yt autretois acqutit r a

former acquittal, 1s grounded on this

universal maxim of the common law of

England, that no man is to be brought

into jeopardy of his hfe, more than once

for the same offence And hence it is

wed as a consequence, that when a

man is once fair/yfound not guilty upon

iny indictment, or other prosecution

be fore any ourt having competent

jurisdiction of the offence, he may plead

h acquittal in bar of any subsequent

iccusation for the same crime

mphasis added

1 Blackstone's Commentaries

y»bserved that thr

ea of autretois convict. or a former

onviction tor the same §$ identical

rime..is a good plea in bar to an

indictment. And this depends upon the

same principle as the former, that no

man out to be twice brought in danger

of his life for one and the same crime....

4 Blackstone’s Commentaries at 329-331.

These pleas in bar were a reaction to generations of

multiple prosecutions, which were "so commonplace

that the only people to escape such a fate were those

capable of surviving the tortuous physical battles of

trial by ordeal." See "The Double Jeopardy Clause of

the Fifth Amendment,” 26 Am Crim L Rev 1477,

1479 (1989)

This tradition of the pleas in bar of autrefois

acquit and autrefois convict, each of which required

a judgment by the jury in a prior proceeding as a

necessary prerequisite, was carried over to the legal

tradition of the colonists, see e.g. the Massachusetts

Body of Liberties of 1641. New Hampshire was the

first colony to specifically recognize the jeopardy bar

in its post-revolutionary constitution, providing that.

"No subject shall be liable to be tried, after an

acquittal, for the same crime or offence." N.H. Const,

art I, sec. 16 (1784). Courts in other states also

recognized this form of plea in bar. See 26 Am Crim

L Rev at 1480-1481.

This rich history was thus before tine First

Congress which proposed the Bill of rights, including

the double jeopardy prohibition As originally

proposed by Madison, the clause simply stated: "No

person shall be subject, except in cases of

impeachment, to more than one punishment or one

trial for the same offence...."(emphasis added). 1

Annals of Cong 434. The original amendments

submitted to the House for consideration included an

amendment to prohibit a "second trial after

a yD

acquittal." The language which evolved prohibiting

more than "one trial" was roundly debated, as

concern was expressed that this language might

prevent a second trial even where sought by the

defendant on a claim of error after a conviction,

whereas the common law was to the contrary. The

result was the language now appearing in the Fifth

Amendment jeopardy clause, referring, significantly,

to one jeopardy, rather than one trial.

Thus, our jeopardy clause is an amalgam of

common law pleas in bar, which required an actual

judgment in a prior proceeding before the bar could

be effectively pled. As stated by Justice Story at a

time very much closer to the ratification of the Bill of

Rights, the double jeopardy clause was understood to

mean "that a party shall not be tried a second time

for the same offense, after he has once been

convicted, or acquitted of the offense charged, by the

verdict of a jury, and judgment passed thereon for or

against him" (emphasis added). Story, 3

Commentaries on the Constitution (1833) § 1781, p.

659. The historical underpinning of the jeopardy

protection, then, with regard to acquittals, 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 embarrassment, 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 US 184

(1957).

The development of the modern doctrine of

“judicial acquittals" began with Fong Foo v United

States, 369 US 141 (1962). There a corporation and

two of its employees were brought to trial for

conspiracy, as well as a substantive offense. After

-18-

seven days of trial, and the promise of many more,

and while the fourth government witness was

testifying, the district judge directed the jury to

return verdicts of acquittal as to all respondents, and

a formal judgment of acquittal was entered. The

trial judge's action was based on alleged misconduct

of the assistant United States Attorney, and a

supposed lack of credibility of the witnesses to that

point. The government appealed, and the Circuit

Court of Appeals reversed, holding that the district

court had no authority to grant the directed verdict of

acquittal under the circumstances of the case. This

Court, though agreeing with the Court of Appeals

that the “acquittal was based upon an egregiously

erroneous foundation," nonetheless held that the

verdict of acquittal was "final and could not be

reviewed.” Inits per curium opinion, which stretches

to amount to a page and one half, the Court reached

this conclusion without any analysis of whether a

"judgment of acquittal" either entered or ordered by

the trial judge, rather than reached by the jury

through its own deliberations, falls within the

protections of the double jeopardy clause as the scope

and purpose of that clause are revealed in history.

Fong Foowas followed and elaborated upon in

the Martin Linen Supply, supra, central to the

question here. A judgment of acquittal was entered

on defense motion after the jury had been discharged

because of an inability to agree. Focusing on the

jeopardy interest against the prevention of multiple

trials, the Court found jeopardy offended by the

prosecution's appeal because a successful government

appeal would result in “another trial." 51 L Ed 2d at

650. Though certainly second trials are permissible

in some circumstances, continued the Court, this is

not so after an acquittal, which the Court then

defined as "a resolution, correct or not, of some or all

«19.

of the factual e/ements of the offense charged"(in the

context of what might be called a "judicial acquittal"

by the entry of a directed verdict of acquittal).

The rationale was similar in Sanabria v

United States, 437 US 54 (1978). After all sides had

rested, the trial judge excluded evidence in the case

on the ground that the Government had cited the

wrong underlying state statute in its indictment, and

in the absence of any other evidence of guilt, then, on

respondent's motion, entered a "judgment of

acquittal." The Government appealed, pointing out

that a technical defect in the indictment was

correctable under the Federal Rules of Criminal

Procedure. The First Circuit held that the

proceedings had terminated on grounds unrelated to

criminal liability of the defendant; this Court, while

agreeing that a dismissal on grounds unrelated to

criminal culpability is not evena "judicial acquittal"

under Martin Linen Supply, held that what had

occurred was not a dismissal, but an evidentiary

ruling, followed by a judicial acquittal, which, under

Martin Linen Supply, "however erroneous, bars

further prosecution on any aspect" of the case. While

a defendant seeking a midtrial termination of the

proceedings on a "legal" ground thus takes "the risk

that an appellate court will reverse the trial court,”

a defendant who seeks a termination of the trial prior

to verdict by seeking a "judicial acquittal" does not

take the risk that an appellate court will reverse the

trial court, said the Court. But why are any

protections offered by the double-jeopardy clause in

its historical context offended in the latter

circumstances (particularly where the judicial

acquittal is gained after obtaining an erroneous

evidentiary ruling)? The trial has been terminated

on the defendant's request before a resolution by the

jury, just as it has with a dismissal on “legal”

-2()-

grounds, and in both situations the judge may be

wrong, and demonstrably so. Giving the State one

full and fair opportunity to present its case for jury

resolution should not be viewed as barred by the

jeopardy clause, for the ruling that no reasonable

juror could find guilt beyond a reasonable doubt is a

legal conclusion, not a “true” acquittal.

And it is important to observe that as a matter

of history, the development of jeopardy principles did

not initially include any power of the court to take a

case from the jury and enter a verdict of acquittal, as

As that authority developed, initially it was not an

authority to take the case from the jury, but rather to

instruct the jury that its duty was to acquit, the

verdict still being delivered by the jury. The jury

might disregard such an instruction, and, if it did so,

the verdict was subject to reversal—but, of course, on

appeal the Government could oppose on the ground

that the instruction was unwarranted given the

evidence. As the authority to actually direct the jury

to a verdict of acquittal evolved to become authority

for the court to take the case from the jury before

deliberation and verdict, it was characterized as a

ruling of /aw that there was no evidence on an

element or elements (now, that no reasonable jury

could find guilt beyond a reasonable doubt given the

proofs). The judge must take the evidence in the

hght most favorable to the prosecution, taking that

evidence as true, and drawing all inferences

reasonably inferable in favor of guilt. See "Directions

for Directed Verdicts: A Compass for Federal Courts,"

55 Minn L Rev 903 (1971); Henderson, "The

Background of the Seventh Amendment," 80 Harv L

Rev 289 (1966), Westen and Drubel, "Toward A

General Theory of Double Jeopardy,” 1978 Sup Ct

Rev 81 (1978); "Power and duty of court to direct or

advise acquittal in criminal case for insufficiency of

evidence," 17 ALR 910.

Westen and Drubel, in "Toward A General

Theory of Double Jeopardy," take the view that when

a trial judge rules as a matter of law that the

evidence and inferences therefrom, viewed in the

light most favorable to the government, would not

support a finding of guilt beyond a reasonable doubt,

that ruling should be "freely reviewable on appeal

because, by hypothesis, it does not depend on an

assessment of credibility or weight of evidence," those

questions by definition being resolved in favor of the

Government. Current doctrine "tends to distort the

trial process," as a judge may rule in a respondent's

favor and shield his ruling from review, by making it

before the jury returns a verdict, thereby not only

causing an "acquittal" that "might not otherwise

occur,” but also "guaranteeing that his ruling will

never be reviewed." Westen and Drubel, at 155.

C. Conclusion

Martin Linen has caused some vexing

problems, being misunderstood by at least Michigan

and New Jersey. The double jeopardy clause of the

federal constitution should mean the same thing

throughout the country. This Court should grant

certioraril to make clear that an acquittal does not

occur when a judge aborts the trial on the ground

that the prosecution could not or did not prove a fact

that 1s not necessary to support a conviction.

Petitioner further submits that the protections

served by the jeopardy clause, as well as the public

interest, would be served by a rule that permitted a

review of a directed verdict of acquittal for legal error

and a second trial if error were found, as there would

be no harassment of the accused, who sought the

termination of the trial, and the public interest in the

conviction of the guilty would be vindicated

RELIEF

Wherefore, the Petitioner requests that

certiorari be granted.

Respectfully submitted,

KYM L. WORTHY

Prosecuting Attorney

County of Wayne

f

TIN Ag

Chief of Research,

Training and Appeals

1441 St. Antoine

Detroit, MI 48226

313 224-5792

24

Appendix A: Court of Appeals Opinion

Court of Appeals of Michigan.

PEOPLE ofthe State of Michigan, Plaintiff-Appellant,

Vv.

Christopher Jamal Anderson WILLIAMS, Defendant:

Appellee.

Docket No. 278974.

Oct. 23, 2008.

Wayne Circuit Court; LC No. 07-005145-01.

Before: WILDER, P.J., andJANSEN and OWENS, JJ.

PER CURIAM.

Plaintiff appeals the trial court's directed verdict of

acquittal on the charge of third-degree criminal

sexual conduct (CSC III), 750 .520d(1)a) (victim

between 13 and 16 years of age). Because the

principles of double jeopardy bar retrial, we dismiss

the appeal.

Plaintiff filed a felony information asserting that on

February 22, 2004, defendant engaged in CSC III

with the complainant. At the preliminary

examination, the complainant, then aged 16,

unwaveringly testified that the sexual conduct

occurred on February 21, not on February 22

Defendant and the court noted that the complainant's

testimony was inconsistent with the charge, and

plaintiff moved to amend the information to change

the alleged date to February 21. The parties

proceeded to trial on the amended charge.

At trial, defendant's theory of the case was that the

complainant had fabricated the entire incident, and

that her inconsistent testimony about the date of the

offense was indicative of her deception. Defense

counsel informed the jury during his opening

statement that the evidence would show many

inconsistencies in the complainant's testimony.

During cross-‘examination, defense counsel

questioned the complainant extensively about the

date of the offense and other matters. The

complainant changed her assertion about the date,

testifying that she was now certain that the offense

occurred on February 22 rather than on February 21.

At the close of the prosecution's case in chief, the

prosecutor moved to again amend the information,

this time to charge a two-week range of dates rather

than a specific date. Defendant opposed the motion

and moved for a directed verdict. The trial court

found that the proffered amendment would be

prejudicial to defendant and denied the motion to

amend. The court then granted the directed verdict of

acquittal.

When a trial court enters a directed verdict of

acquittal based on insufficient evidence, the

constitutional double jeopardy provisions preclude

any further proceedings against the defendant on

that charge. US Const, Am V; Const 1968, art 1, § 15:

People v. Nix, 453 Mich. 619, 626-627; 556 NW 2d 866

(1996). The acquittal bars retrial even if the trial

court misperceives an elemen: of the charged offense.

Nix, supra at 628. Here, the trial court based the

directed verdict on its conclusion that the prosecution

had failed to provide sufficient proof that the offense

2A

occurred on the date charged in the amended

information. Accordingly, the directed verdict

constituted an acquittal for double jeopardy purposes.

Plaintiff maintains that under People v. Meha/l/, 454

Mich. 1, 5; 557 NW2d 110 (1997), the trial court's

decision did not constitute an acquittal on the merits.

We disagree. In Mehal/, our Supreme Court

explained that if a trial court directs a verdict based

upon the court's assessment of witness credibility,

but “fail[s] altogether to rule on the sufficiency of the

prosecution's proofs,” the verdict does not constitute

an acquittal and double jeopardy does not bar retrial.

Id. at 6-7. The Supreme Court confirmed, however,

that when a trial court directs a verdict based upon

a determination that the evidence is insufficient, the

defendant cannot be retried. /d. at 7.

We find instructive this Court's decision in People v.

Jakiel, 92 Mich.App 754: 285 NW2d 448 (1979). In

Jakiel, as in the case at bar, the prosecutor sought

reversal of a directed verdict of acquittal, arguing

that the trial court had erred by requiring proof that

the offense occurred on a specific date. /d. at 756-757.

This Court concluded that although the trial court

had incorrectly found that time was an essential

element of the charged offense, double jeopardy

barred the prosecutor's appeal, regardless of whether

the trial court's ruling on the date issue was

erroneous. Jd. at 757-758.

In the case at bar, the trial court denied plaintiff's

motion to amend and then acquitted defendant,

operating under the erroneous belief that time was

an essential element of the CSC charge. It is true

that time is not an essential element in CSC cases

involving minor victims. People v. Dobek, 274

Mich.App 58, 83; 732 NW2d 546 (2007). However, the

3A

trial court's finding that the prosecution had

presented insufficient evidence to sustain a

conviction-even if technically incorrect-constituted an

acquittal on the merits for double jeopardy purposes.

Jakiel, supra at 756-758. We accordingly need not

address whether the court erred in denying the

motion to amend.

The appeal is dismissed

4A

Appendix B: Order Denying Leave

Supreme Court of Michigan.

PEOPLE ofthe State of Michigan, Plaintiff Appellant,

ge

Christopher Jama] Anderson WILLIAMS,

Defendant-Appellee.

Docket No. 137586.

COA No. 278974.

Jan. 9, 2009.

Order

On order of the Court, the application for leave to

appeal the October 23, 2008 judgment of the Court of

Appeals is considered, and itis DENIED, because we

are not persuaded that the question presented should

be reviewed by this Court.

HATHAWAY, J., not participating.

People v. Williams (Mich.,2009)