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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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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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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0247%3A1. Public record. Not legal advice.