By Jonathan Stempel
WASHINGTON, Nov 6 (Reuters) - Lamar Evans was acquitted of
burning down a vacant house after his trial judge mistakenly
required Michigan prosecutors to prove more than they needed to,
all sides now in the case agree.
The U.S. Supreme Court on Tuesday considered whether Evans
can now be tried again.
A decision, expected by the end of June, could punch a hole
in the U.S. Constitution's general prohibition against being
tried twice for the same crime, known as double jeopardy.
Justices appeared torn over how to balance the protection
under that rule against potentially setting guilty defendants
free by depriving the government of its right to prosecute.
"We've said the government gets one fair shot at
conviction," Chief Justice John Roberts told Evans's lawyer
David Moran. "It does seem to me that if they had been thrown
out of court because of a legal error, it's not a fair shot."
Two Detroit police officers had caught Evans on Sept. 22,
2008, as he ran with a gasoline can away from the burning house.
Arson investigators later found that gas had been poured in the
kitchen, the dining room and a bedroom.
At the request of Evans's lawyer at the time, the trial
judge said prosecutors had to prove that the house was a
dwelling, even though state law did not require such proof. When
they could not, the judge directed that Evans be acquitted.
However, the Michigan Supreme Court ruled 4-3 in March that
Evans could be retried as the acquittal was based on an error of
law that did not address the facts of the alleged crime.
In his appeal, Evans's lawyers said the U.S. Supreme Court
has held for more than a century that legal errors leading to
acquittals did not affect the finality of those acquittals.
They also said creating an exception when judges add an
"extra element" to the burden of proof would let prosecutors
appeal acquittals by juries as well as by judges.
The National Association of Criminal Defense Lawyers
supported Evans's appeal, saying it was an "iron-clad rule" that
defendants who are acquitted because of errors of fact or law
cannot be retried for the same crimes.
"AN ACQUITTAL IS SPECIAL"
Several justices on Tuesday questioned where to draw the
line if an exception to double jeopardy protection were created.
Some asked how wrongly acquitted defendants ought to fare
when judges try cases without juries, misconstrue the evidence
rather than the law, or make errors in law that were not at the
behest of lawyers like Evans's trial lawyer.
Justice Elena Kagan asked Moran whether his client might
have gotten a "windfall" through a wrongful acquittal. "Your
client walks away the winner when he shouldn't have," she said.
Moran resisted the characterization. "The court has decided
to draw a firm line, to decide that an acquittal is special,"
Meanwhile, Timothy Baughman, arguing on Michigan's behalf,
said that to give the prosecution "one full and fair
opportunity, we believe, imposes no cruelty or oppression upon
The U.S. Department of Justice supported Michigan's appeal.
Curtis Gannon, arguing on the government's behalf, called
the matter an "egregious case" that did not require the Supreme
Court to do away with decades of precedents.
Justice Ruth Bader Ginsburg questioned where to draw the
line. "If we adopt your rule, it can't be for this case only,"
she told Gannon. "That's a difficult line to adopt."
The case is Evans v. Michigan, U.S. Supreme Court, No.
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