By Jonathan Stempel
WASHINGTON, Feb 20 (Reuters) - The U.S. Supreme Court on
Wednesday said Michigan cannot retry a defendant whose arson
case had been thrown out by a trial judge who mistakenly
required state prosecutors to prove more than they needed to.
The 8-1 decision was a victory for defendant Lamar Evans,
who had argued that the U.S. Constitution's general prohibition
against being tried twice for the same crime, known as double
jeopardy, barred a retrial.
Justice Sonia Sotomayor wrote for the majority that while
all sides agreed that the midtrial acquittal was wrong, having
been based on a misunderstanding of state law, the error was "of
no moment" for double jeopardy purposes, even if it created what
Michigan called a "windfall" for the defendant.
"Having chosen to vest its courts with the power to grant
midtrial acquittals, the state must bear the corresponding risk
that some acquittals will be granted in error," she wrote.
Evans had been caught on Sept. 22, 2008, by two Detroit
police officers as he ran with a gasoline can away from a
burning house, where gas had been poured inside.
He was acquitted after state prosecutors were unable to
prove that the house was a dwelling, a level of proof that the
trial judge demanded but which was not required under state law.
The Michigan Supreme Court ruled 4-3 last March that Evans
could nonetheless be retried because the acquittal was based on
an error of law, not the facts of the alleged crime. Wednesday's
decision reversed that ruling.
"The decision affirms the ancient principle that when a
state puts someone on trial, we don't revisit an acquittal to
see if there was a mistake and give the state another bite of
the apple," David Moran, a University of Michigan law professor
representing Evans, said in a phone interview.
"If the state were allowed to try people over and over
again, it would be a form of government oppression," he said.
Moran said Evans is a pastor who now lives in Toledo, Ohio.
Evans could not immediately be reached for comment.
Justice Samuel Alito dissented. He said since the trial
judge pulled "out of thin air" a higher burden of proof, there
was no actual acquittal on the crime for which Evans had been
charged. Alito said Wednesday's decision deprived Michigan of
its right to "one fair opportunity" at a conviction.
Timothy Baughman, chief of appeals in the Wayne County,
Michigan, prosecutor's office, who argued the state's case, said
he was disappointed with the decision.
He said Michigan's supreme court was mulling whether to
require state judges who grant midtrial acquittals to offer
prosecutors 24 hours to seek reversals. "If this rule had been
in effect at the time of Evans' acquittal, we would clearly have
won a stay and the trial would have resumed," Baughman said.
Joining Sotomayor's opinion were Chief Justice John Roberts,
and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas,
Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
Evans' appeal drew support from the National Association of
Criminal Defense Lawyers.
The U.S. Department of Justice supported Michigan's appeal,
calling the matter an "egregious case" that did not require
upending decades of precedents.
The case is Evans v. Michigan, U.S. Supreme Court, No.
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