What if they gave a prosecution and the prosecution took its ball and went home?


From the ‘don’t-try-this-at-home-kids‘ department, a truly flabbergasting story out of Illinois of hubris, hissy-fits and the Double Jeopardy Clause.

Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing.

No, that’s not hyperbole or “insider-talk”. They literally did nothing. From the Illinois Supreme Court opinion:

According to the report of proceedings, “the jurors were duly sworn by the clerk.” The court then provided the jurors with general, preliminary instructions. Thereafter, the court indicated to the State that it could proceed in presenting its case in chief. The following exchange then occurred:

“[The Prosecutor]: Your Honor, respectfully, the State is not participating in this case.

THE COURT: Defense?

[Defense Counsel]: Judge, we would waive opening statement.


HE COURT: The People may call their first witness.

[The Prosecutor]: Respectfully, your Honor, the State is not participating in this matter.

THE COURT: Does the defense wish to be heard?

[Defense Counsel]: I do, Judge.

THE COURT: Ladies and Gentlemen, we’ll take a ten-minute break.”

¶ 8 Upon the jurors leaving the courtroom, the following exchange occurred:

“[Defense Counsel]: Judge, the jury has been sworn. The State has not presented any evidence. I believe they’ve indicated their intention not to present any evidence or witnesses. Based on that, Judge, I would ask the Court to enter directed findings of not guilty to both counts, aggravated battery and mob action.

THE COURT: Do the People wish to reply?

[The Prosecutor]: No, your Honor. Respectfully, the State is not participating.

THE COURT: The Court will grant a motion for a directed finding and dismiss the charges.”

Here, let me help you with your jaw.

Some further details might help: the prosecution was for the assault of two men. For over a year, the prosecution couldn’t find the two men who were the alleged victims and had repeatedly requested continuances – which had been granted – for inability to locate the victims. When the trial finally started in May 2010, the case had been pending for over 4 years. On the morning of trial, the prosecution once again indicated that they didn’t know if their witnesses would be there. So the judge offered to start jury selection and give the prosecution some time to figure that out. The prosecution agreed.

Once jury selection was completed, the state again moved for a continuance on the basis that the two victims weren’t there. The judge noted that the state had twelve witnesses on its witness list and that it would certainly take a day or two to get through those witnesses, in which time police officers could go and track down the two victims to bring them to court.

Instead of accepting this incredibly generous and rational proposal, the prosecution decided to act like a whiny little baby and take its ball and go home:

[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.

Words aren’t enough, so I present a moving picture:


Anyway, to cut to the chase, Supreme Court caselaw makes it pretty clear that once a jury has been empaneled and sworn in, ‘jeopardy attaches’:

As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of “attachment of jeopardy.” See United States v. Jorn, supra,at 480. In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. Downum v. United States, 372 U. S. 734 (1963)Illinois v. Somerville, 410 U. S. 458 (1973). In a nonjury trial, jeopardy attaches when the court begins to hear evidence. McCarthy v. Zerbst, 85 F. 2d 640, 642 (CA10 1936). See Wade v. Hunter,336 U. S. 684, 688 (1949). The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is “put to trial before the trier of the facts, whether the trier be a jury or a judge.” United States v. Jorn, supra, at 479.

In fact, that’s one of the primary reasons why the prosecution cannot appeal an acquittal or a dismissal, except in very narrow, rare circumstances. Which is what they did in Martinez’s case. After having had their cake, they wanted to eat it too: they wanted to be able to re-try Martinez presumably now having found the missing witnesses.

Unsurprisingly, the Illinois Supreme Court agreed, finding that jeopardy hadn’t “technically” attached, because there was no risk of conviction, because the prosecution wasn’t playing. So even though the jury was impaneled and sworn in and ready to go, the minute the prosecution pulled the ball from under the judge’s feet, the trial was over and they should get to go again.

The problems with this are obvious to anyone who’s ever read a strip of Peanuts: Lucy pulls the ball and Charlie Brown goes falling on his ass. Again. And again. And again.

Condoning such a rule, in effect, signals that the prosecution can pull the ball out from under the defense as many times as it pleases and for no valid reason whatsoever. All it takes it for them to simply announce “we’re not participating” and they then hijack the justice system and force the judge to grant a continuance.

Remember that the State has few, if any, rights and the majority of the rights vest in the defendant. It is his right to a speedy trial and his right to an empaneled jury of his peers that is being defecated upon here.

Imagine a scenario where a prosecutor makes some terrible choices in jury selection and ends up with a jury of people he doesn’t like (read: minorities). Instead of putting on his case and leaving the fate of the defendant up to members of the community, he can reshuffle the deck in his favor by simply announcing he’s not going to play and continue to do so until he gets a jury he likes.

Or, if you really want to know how outrageous this is, employ the Matthew McConaughey technique and pretend that the prosecution is the defendant.

Can you imagine just what would happen if it were the defendant who pulled a stunt like this? Simply refused to participate in a trial? I can tell you what’ll happen: they will try the case without the defendant and convict him and uphold that conviction.

Just last year, in Evans v. Michigan, SCOTUS said that double jeopardy bars re-prosecution even when the acquittal was erroneously entered. They shouldn’t condone yet another abusive and blatantly unconstitutional practice by prosecutors.

14 thoughts on “What if they gave a prosecution and the prosecution took its ball and went home?

  1. Paul B. Kennedy

    Un-freaking-believable. Sorry, but once the judge swore the jury in and the state rested its case without putting on any evidence that’s the end of the story. Jeopardy doesn’t attach when there’s a “threat of being convicted,” jeopardy attaches once trial has begun.

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  3. Jonathan Becker

    The Supreme Court rule is not absolute in New York. See CPL 40.30, which enumerates a number of exceptions to the jeopardy rule, including an order that restores the indictment to a pre-pleading stage. Also, see generally, People v. Whipple, where the Court of Appeals held that a technical defect in the prosecutor’s case in chief was not grounds for dismissal on appeal, and reversed dismissal, because in New York the order of trials is not prescribed rigidly by statute.

    Here, the People’s choice to not proceed after 4 years is odd, but raises the quesrtion about why the witnesses were missing (meaning by misconduct of the defense). It’s also interesting that the Supreme Court even granted leave, except maybe to dismiss and affirm their earlier rulings.

    1. Curtis Steeves

      How do you possibly get from missing witnesses to misconduct of the defence? Did you read a different article than I did? The article implies the People’s choice was based on the People sulking like a four year old child. Talk about an unsupported leap.

  4. Peter Hurley

    So today was the first order list after the conference where this case was up. It wasn’t on the list – which is a good sign. Hopefully we’ll see a cert grant next Monday and a Supreme Court smackdown later on.

      1. Peter Hurley

        This was the third, but the first one where the record below had been fully supplied. I don’t know that they can GVR re: Evans, since Evans came out Feb. 20, 2013, and the Illinois opinion came out on Apr. 18, 2013. However, neither party would have had the opportunity to argue Evans, so that’s probably enough basis.

          1. Peter H

            Good news! The US Supreme Court handed down a per curiam smackdown to the IL Supreme Court on this case.


            The Illinois Supreme Court manifestly erred in allowing the State’s appeal, on the theory that jeopardy never attached because Martinez “was never at risk of conviction.” 2013 IL 113475, ¶39, 990 N. E. 2d 215, 224. Our cases have repeatedly stated the bright-line rule that“jeopardy attaches when the jury is empaneled andsworn.” Crist v. Bretz, 437 U. S. 28, 35 (1978); see infra, at
            6. There is simply no doubt that Martinez was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that Martinez may not be retried.

  5. T.D.

    I don’t know the relevant law in Illinois, but did the prosecution have the ability to file an immediate interlocutory appeal on the specific question of the denied continuance?

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