A Lesson in Double Jeopardy

March 20, 2009

The Fifth Amendment to our Constitution provides that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” This language is commonly referred to as the Double Jeopardy Clause. Most people understand this language to mean that the government cannot try to “get you twice” for the same crime. That is a pretty good summary of the broad concept, but there are some finer points to how it works.

Let’s pretend that the government charges you with a crime. You get a lawyer and go to trial during which the prosecutors present evidence to the jury. After the government concludes its case, the defense counsel usually files a motion for a directed verdict. This motion basically asks the court to throw out the charges and enter an acquittal because the prosecutors failed to present sufficient evidence of a crime. This is a very important motion that acts as a check and balance system on the executive branch (i.e., police, prosecutors, district attorneys).

You see, the government has the power to charge a person with a crime, but if they fail to present any evidence of the crime, the judge is supposed to “check” the executive branch by throwing out the case. Without this check and balance system, prosecutors would be allowed to charge you with a crime knowing they didn’t have any evidence and convince a jury to convict you because they didn’t like your hair. That is not the way it is supposed to work. The motion for directed verdict is a powerful check on the prosecutor to prevent him from convicting a person of a crime without any evidence.

In practice, defense lawyers almost always file motions for directed verdict but they are rarely granted. Well yesterday a judge in Arizona granted a defendant’s motion for directed verdict and it seems to have caused quite a stir.

Apparently, Arizona Attorney General Terry Goddard tried to charge local gun dealers who he accused of arming Mexican drug cartels. It seems that the gun dealers made legitimate sales of weapons to individuals who later shipped the weapons to Mexican drug cartels. Because the gun dealer’s sales were legitimate under state law, the Attorney General basically had no case, but it didn’t stop him from charging the crime. This is a text book example of when a judge should grant a directed verdict, and that is exactly what Judge Robert Gottsfield of Maricopa County Superior Court did. Judge Gottsfield threw out the case, as he should have, because the prosecutors didn’t have enough evidence to convict but instead wanted to bend and twist the law to make up a different crime.

By no means am I suggesting that gun dealers should be arming drug cartels, but prosecutors should not be allowed to overreach and “make up the law” to promote their own self righteous agendas. If they want the laws changed to make it easier for them to charge crimes, they need to go to their state legislature to do it. But they should not expect the judges to give them a hand in their endeavors.

Of course the Attorney General is mad as hell because the judge actually enforced the constitution and threw out the case. In an interview reported in the New York Times, Goddard said “It’s not over by any means” and went on to say “We are trying to make sense of it.”

I’m sorry to tell you Mr. Goddard, but it is indeed over. Let me break this down for you. The Double Jeopardy Clause doesn’t allow you to continue your crusade once the Judge granted the motion for directed verdict. The grant of a motion for directed verdict is the same as an acquittal. Once there is an acquittal, your case is over. You get no appeal, even if the Judge’s reasoning underlying his ruling is wrong so says the United States Supreme Court.

You may want to take a look at the Supreme Court’s decision in Smalis v. Pennsylvania, 476 U.S. 140 (1986) in which the highest court of our land ruled that if the trial judge grants a motion for directed verdict for lack of evidence, there can be no further proceedings or appeal by the government. To be more specific, the Supreme Court held that:

The Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into “further proceedings of some sort”

In State of Arizona v. Millanes, 180 Ariz. 418 (1994), the Arizona Court of Appeals has already followed the Supreme Court’s decision in Smalis.

So what does this all mean? In short, its over. Thank God for our constitutional system of checks and balances, and even more so for judges like Robert Gottsfield who are willing to “check” prosecutors for trying to skirt our constitutional rights.