Timing is Everything: Martinez v. Illinois (Re)Specifies When Jeopardy Attaches

JURIST Guest Columnist Griffen Thorne, Loyola University Chicago School of Law, Class of 2015, discusses the intricacies of double jeopardy and the point at which jeopardy is thought to first occur...

Double jeopardy is among the most complex doctrines of constitutional criminal procedure and among the most important protections of the criminally accused. The Double Jeopardy Clause of the Fifth Amendment provides, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb in criminal or civil cases." The Supreme Court noted in North Carolina v. Pearce that Double Jeopardy bars a second prosecution for the same offense after an acquittal or conviction, and also bars multiple punishments for the same offense.

Though double jeopardy jurisprudence is replete with rules that are vague and perplexing, one of its simpler aspects is that jeopardy must "attach" before the Double Jeopardy Clause can bar a later prosecution. However, what is simple in theory has been difficult in practice, as the Supreme Court has struggled to precisely identify when exactly jeopardy attaches.

The court has provided substantial guidance to determine when jeopardy attaches. Most notably, in Crist v. Bretz, the court held that in a jury trial, jeopardy attaches when the jury is sworn. Despite Crist's apparent clarity and simplicity, the court was recently tasked with re-interpreting the rule.

In Martinez v. Illinois the court heard an appeal from the Illinois Supreme Court, which had concluded that a defendant had not been put in jeopardy even after the jury was sworn. The Illinois Supreme Court claimed first that Crist was not designed for rigid application, but more importantly that the facts of Martinez's case and acquittal indicated that he never actually faced a real threat of conviction.

In a short per curiam opinion issued on May 27, 2014, the court reaffirmed that jeopardy attaches the moment the jury is sworn, and that double jeopardy bars retrial following an acquittal where jeopardy attached. Essentially, the court made its bright-line rule even brighter.

Martinez confirmed that once jeopardy attaches, the prosecution has one chance to prove its case. The state cannot simply hit the "reset" button in the face of unfavorable obstacles. And most importantly, the accused cannot be twice brought to trial based on the prosecution's errors.

In August 2006 Esteban Martinez was indicted for mob action, as well as aggravated battery against Avery Binion and Demarco Scott. On Martinez's 2009 trial date, the prosecution moved to continue, as it could not locate Binion or Scott. The motion was granted, but by the rescheduled date, neither Binion nor Scott had been found. The trial court granted three more continuances, each time based on Binion and Scott's absences.

On May 17, 2010 the fourth rescheduled trial date, Binion and Scott were still missing. When the prosecution asked for a brief continuance, the court instead offered to delay swearing the jury for a few hours, giving the prosecution the choice between moving to dismiss its case and having the court empanel the jury. The court cycled through all of the cases on its docket and offered the prosecution an additional "couple of hours" to locate Binion and Scott.

When the prosecution inevitably reported that the men could still not be found, the court ordered that the jury be brought in and sworn. After the court directed the prosecution to proceed with its case, the prosecution demurred, twice informing the court that the state would not be participating in the trial. The defense moved for a judgment of acquittal, which the court granted.

The state appealed, arguing that the trial court should have granted its continuance. Martinez disputed the appeal. He contended that double jeopardy barred a subsequent appeal, as the trial court had acquitted him of all charges.

The Illinois Appellate Court sided with the state, concluding jeopardy never attached and that the trial court erred in refusing to grant the state a fifth continuance. The Illinois Supreme Court affirmed the appellate court. Though it cited Crist, it nevertheless concluded that jeopardy had not attached in Martinez's case. To support its conclusion, the court cited Serfass v. United States, where the Supreme Court rejected "rigid, mechanical" rules, and held that the relevant question to when jeopardy attaches is whether the defendant was "subjected to the hazards of trial and possible conviction."

Following what it construed to be the meaning of Serfass, the Illinois Supreme Court concluded that Martinez was never placed in jeopardy, as the prosecutor had made clear that the state would not participate in the trial. Consequently, Martinez could not have been successfully prosecuted. Therefore, the court held that he was never in jeopardy. But, the Supreme Court disagreed.

The court's entire, albeit short, analysis centered on the faults of the Illinois Supreme Court's reasoning and its misreading of Supreme Court precedent. The Court initially noted that the Crist rule that jeopardy attaches when the jury is sworn is among the clearest rules in criminal procedure jurisprudence.

The court contended that the Illinois Supreme Court relied on a misreading of Serfass. The Court noted that Serfass's admonishment of "rigid, mechanical" rules was not aimed at the moment when jeopardy attaches, but instead at whether the manner in which a trial terminated barred a retrial.

And, with respect to Martinez not being "subjected to the hazards of trial," the court stated simply that it had never suggested that jeopardy did not attach merely because a defendant did not face a genuine risk of conviction. The mere act of swearing the jury subjected Martinez to jeopardy.

Having determined that Martinez was subject to jeopardy, the court moved onto the question of whether double jeopardy barred a retrial. The court cited its recent Evans v. Michigan opinion, noting that acquittal is a resolution of at least some of the factual elements of the crime with which a defendant is charged. Acquittal is the most basic source of a double jeopardy bar.

The court concluded that the trial court's acquittal was a "textbook" finding that the prosecution's evidence could not support Martinez's conviction. The trial court's action was not a dismissal, because it was based on the prosecution's failure to provide sufficient evidence in support of its case. Martinez could not be retried.

Martinez's impact is relatively straightforward—what was once considered a bright-line rule is much brighter. The moment a jury is sworn, the prosecution is locked into its case, and any subsequent acquittal bars retrial. However, Martinez confirmed that prior to jeopardy attaching, the ball is in the prosecutor's court.

Martinez provides some guidance to prosecutors in similar, tough situations prior to trial. The court noted that had the prosecutor accepted the trial court's invitation to move for dismissal, double jeopardy would not have barred retrial, as jeopardy would not have attached. In so noting, the court recognized that the prosecution—even if faced with seemingly fatal circumstances—still controls the case prior to jeopardy attaching.

Following Martinez, prosecutors facing similar circumstances should move to dismiss. Failure to move to dismiss is a prosecutorial mistake but it is nevertheless impermissible to place a defendant twice in jeopardy based on a prosecutor's negligence. Failure to make the proper motion at the proper time poses substantial problems for prosecutors. Procedural incompetency may put guilty (and even violent) criminals back on the street. But Martinez's warning for prosecutors is simple and clear: timing is everything.

Griffen Thorne earned a B.A. in Music from University of California, Berkeley. He is currently the Editor-in-Chief of the Loyola University Chicago Law Review.

Suggested Citation: Griffen Thorne, Timing is Everything: Martinez v. Illinois (Re)Specifies When Jeopardy Attaches, JURIST - Dateline, June 19, 2014, http://jurist.org/dateline/2014/06/griffen-thorne-double-jeopardy.php


This article was prepared for publication by Josh Guckert, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to him at studentcommentary@jurist.org

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