Petulant Prosecutor's Refusal to Participate Means Double Jeopardy

Esteban Martinez is a free man, and he may have a petulant prosecutor to thank.

When Martinez's two alleged victims were no shows at his much-delayed and oft-rescheduled felony trial, the court finally lost patience, after nearly five years of waiting to resolve the pending case. And when the court ordered that the trial proceed, the prosecutor refused to participate, even after a jury was sworn in, leading to a judgment of acquittal.

The Illinois Supreme Court ordered that Martinez could be retried, as he was "never at risk for conviction," but yesterday, the U.S. Supreme Court, in a brief per curiam opinion, pointed to their own long-standing bright line rule: once the jury is sworn in, jeopardy attaches. And the trial court's directed verdict was "a textbook acquittal: a finding that the state's evidence cannot support a conviction."

Especially since, you know, the State didn't present any evidence.

Colloquy of Petulance

After the trial date was postponed five times, four of them because the complaining witnesses were nowhere to be found despite subpoenas, the court finally ordered that the trial proceed, and told the prosecutor to continue with other evidence and ten other witnesses while the police tracked down the "well known" missing convicted felon witnesses.

The court also offered to delay the trial by a few hours, and handled the rest of the day's docket before returning to Martinez's felony trial.

Instead, this happened:

THE COURT: . . . . It's a quarter to eleven and [the witnesses] have not appeared on their own will, so I'm going to bring the jury in now then to swear them.

[The Prosecutor]: Okay. Your Honor, may I ap­proach briefly?

THE COURT: Yes

[The Prosecutor]: Your Honor, just so your Honor is aware, I know that it's the process to bring them in and swear them in; however, the State will not be par­ticipating in the trial. I wanted to let you know that.

THE COURT: Very well. We'll see how that works.

After the jury was sworn and instructed, the court directed the State to proceed. It declined to do so, repeatedly, stating, "Respectfully, your Honor, the State is not participating in this matter."

Bright Line Rule

Oddly enough, the Illinois Supreme Court found that Martinez could be retried, as he was "never at risk for conviction."

The U.S. Supreme Court couldn't have disagreed more:

A jury trial begins, and jeop­ardy attaches, when the jury is sworn. We have never suggested the exception perceived by the Illinois Supreme Court -- that jeopardy may not have attached where, under the circumstances of a particular case, the defendant was not genuinely at risk of conviction. Martinez was subjected to jeopardy because the jury in his case was sworn.

Pair a sworn jury with an acquittal, even one via a directed verdict, and Double Jeopardy clearly bars any retrial.

Next Time, Dismiss and Recharge

The per curiam opinion notes that this is not an unfair result for prosecutors or the public. Not only were there multiple granted continuances before the trial date, but on the day itself, the court repeatedly delayed swearing in the jury to buy more time for the prosecution, which declined to proceed. The court also told the State that it could "move to dismiss [its] case" and recharge and try Martinez at a later date.

Instead, the petulant prosecutors, irked over a denied continuance, refused to play along. Next time, take the court's advice.

Related Resources:

• Prosecutor Facing Discipline for 'Our White World' Closing Statements (FindLaw's Strategist Blog)
• Dropping Bars and Bodies: Should Rap Lyrics be Criminal Evidence? (FindLaw's Strategist Blog)
• Double Trouble: Prosecutors Charged the Wrong Twin (FindLaw's Strategist Blog)