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November 6, 2012

SCOTUS busy with criminal justice issues as other branches await poll returns

As reported via this SCOTUSblog post, the Supreme Court spent the 2012 Election Day hearing two criminal justice cases:

In Evans v. Michigan, the Justices will consider whether the Double Jeopardy Clause bars retrial of a defendant who wins a directed verdict that was based on the prosecution’s failure to prove what the judge erroneously held to be an element of the offense. In Smith v. United States, the Justices will consider which party bears the burden of proof that an alleged conspirator’s withdrawal from a conspiracy occurred outside of the limitations period, thereby barring prosecution.

A busy week has kept me from having time to figure out if there could be some big sentencing issues lurking in these cases, but perhaps some readers can report whether either case could possibly be a sentencing sleeper.  The oral argument transcript in Smith v. United States is here, and the transcript in Evans v. Michigan is here.

November 6, 2012 at 05:11 PM | Permalink


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The Evans case is one of the easiest you ever see in the Supreme Court. The answer lies in the ancient rule that a party cannot profit from an error it induces the court to commit.

In Evans, defense counsel hoodwinked the trial judge into thinking that the relevant arson statute contains an element that's simply not there (something that's conceded now). Counsel then moved for a directed verdict of acquittal because the government had failed to prove the non-existent element (the government also failed to prove that the defendant washed his face on the day of the crime, which is just as much of an element).

The judge went along. The question now is whether a retrial is permitted under the DJC. The Michigan courts said yes.

I believe the state will garner all nine votes. And if invited error doesn't do the trick, constructive waiver will: When a party pulls a fast one on the court, he constructively waives any right he would have had absent his misleading behavior.

Any other result puts a premium on persuading trial courts to err. I just don't believe SCOTUS is going to buy it.

Posted by: Bill Otis | Nov 6, 2012 5:42:13 PM

I'm with bill here. Of course i also thing the court should have ordered the arrest and prosecutin for fraud on the part of the Defense Attorney in a situation like this.

Posted by: rodsmith | Nov 6, 2012 7:05:07 PM


I've read the briefs. There's nothing about hoodwinking/fraud on the court here. Just a judge's mistake about the law.

I'll bet you $100 that Lane will get one vote.

Professor, will you hold the bet?

Mark Pickrell

Posted by: Mark Pickrell | Nov 8, 2012 6:17:08 PM

Mark Pickrell --

"I've read the briefs. There's nothing about hoodwinking/fraud on the court here. Just a judge's mistake about the law."

No, it is not JUST about a judge's mistake about the law. The judge was induced to make the mistake by defense counsel's false assertion about what elements the government had to prove.

You are certainly sophisticated enough to know that DJC cases often depend on whether the defendant was deprived on his "valued right" to get a jury determination of guilt. But here, the defendant wanted no such thing. He wanted the opposite: that the jury never get the case. And the way he brought that about was by giving a false rendition of the elements to the judge.

I will take your bet, if you (for once) take mine. I'll bet you $100 that the case will be decided in the government's favor on the basis of invited error.

If you take my bet, I'll take yours.

Are we on?

Posted by: Bill Otis | Nov 10, 2012 6:34:41 PM


You said that the government would win "all nine votes." Consistent with YOUR assertion, I bet you that the defendant would get at least one vote. Now you want to crab walk away from your "all nine votes" comment and buy some insurance with a second bet that the government need only get five votes. I never said that the defendant would win, so I feel no need to take your offered bet.

If you're still confident that the government will win "all nine votes," then take my bet. Otherwise, just admit (or show by your silence) that your bravado got ahead of your brain. It's only $100. Take the bet.

Mark Pickrell

Posted by: Mark Pickrell | Nov 12, 2012 6:37:03 PM

Mark Pickrell --

I decline to be egged on by your distortions. Your first was this: That the error here was "Just a judge's mistake about the law."

I pointed out that that is not true, and not true in a manner central to my theory of how the case will be resolved. It most certainly was not "just" the judge's mistake. It was a mistake sold to him by defense counsel's false rendition of the elements. Without that false rendition, my invited error theory is much weaker. I pointed out the flaw in your "JUST a judge's mistake..." formulation, but you just whistle on past it.

Now, moving right along, you use another form of distortion, namely, conveniently truncating what I said rather than quoting all the relevant wording. What I actually said was not "that the government would win all nine votes," but (emphasis added) that "I BELIEVE the state will garner all nine votes." This you falsely characterize as "bravado." It is no such thing, and for you to say so is silly.

I will take a wager based on the actual words I used, neither more nor less. That is, I will happily bet $100 that I believe the state will garner all nine votes. Are we on?

By the way, you can climb down from Mt. Olympus with your "bravado" and "crab walk" stuff. Am I supposed to be impressed?

P.S. I see you decline to disagree with either my prediction about who win the case or why. So I don't see the point of what you're doing here excpet to make it personal. You're ususally better than that.

Posted by: Bill Otis | Nov 12, 2012 9:04:24 PM

Mark Pickrell --

"Otherwise, just admit (or show by your silence) that your bravado got ahead of your brain. It's only $100. Take the bet."

It would appear that I'm not the one being silent. To borrow a phrase, does your silence mean that your bravado got ahead of your brain?

Posted by: Bill Otis | Nov 14, 2012 10:30:43 AM

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