SUPREME COURT OF THE UNITED STATES
ESTEBAN MARTINEZ, PETITIONER v. ILLINOIS
on petition for writ of certiorari to the
supreme court of illinois
No. 13–5967. Decided May 27, 2014
Per Curiam.
The trial of Esteban Martinez was set to begin
on May 17, 2010. His counsel was ready; the State was not. When the
court swore in the jury and invited the State to present its first
witness, the State declined to present any evidence. So Martinez
moved for a directed not-guilty verdict, and the court granted it.
The State appealed, arguing that the trial court should have
granted its motion for a continuance. The question is whether the
Double Jeopardy Clause bars the State’s attempt to appeal in the
hope of subjecting Martinez to a new trial.
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 and sworn.” 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.
We therefore grant Martinez’s petition for
certiorari and reverse the judgment of the Illinois Supreme
Court.
I
A
The State of Illinois indicted Martinez in
August 2006 on charges of aggravated battery and mob action against
Avery Binion and Demarco Scott. But Martinez’s trial date did not
arrive for nearly four years. [
1 ]
The story picks up for present purposes on July
20, 2009, when the State moved to continue an August 3 trial date
because it had not located the complaining witnesses, Binion and
Scott. The State subpoenaed both men four days later, and the court
rescheduled Martinez’s trial to September 28. But the State sought
another continuance, shortly before that date, because it still had
not found Binion and Scott. The court rescheduled the trial to
November 9, and the State reissued subpoenas. But November 9 came
and went (the court continued the case when Martinez showed up
late) and the trial was eventually delayed to the following March
29. In early February, the State yet again subpoenaed Binion and
Scott. When March 29 arrived, the trial court granted the State
an-other continuance. It reset the trial date for May 17 and
ordered Binion and Scott to appear in court on May 10. And the
State once more issued subpoenas. [
2 ]
On the morning of May 17, however, Binion and
Scott were again nowhere to be found. At 8:30, when the trial was
set to begin, the State asked for a brief continuance. The court
offered to delay swearing the jurors until a complete jury had been
empaneled and told the State that it could at that point either
have the jury sworn or move to dismiss its case. When Binion and
Scott still had not shown up after the jury was chosen, the court
offered to call the other cases on its docket so as to delay
swearing the jury a bit longer. But when all these delays had run
out, Binion and Scott were still nowhere in sight. The State filed
a written motion for a continuance, arguing that it was “unable to
proceed” without Binion and Scott. Tr. 7. The court denied that
motion:
“The case before the Court began on July 7,
2006. In two months we will then be embarking upon half a decade of
pending a Class 3 felony. Avery Binion, Jr., and Demarco [Scott]
are well known in Elgin, both are convicted felons. One would
believe that the Elgin Police Department would know their
whereabouts. They were ordered to be in court today. The Court will
issue body writs for both of these gentlemen.
“In addition, the State’s list of witnesses
indi- cates twelve witnesses. Excluding Mr. Scott and Mr. Binion,
that’s ten witnesses. The Court would anticipate it would take
every bit of today and most of tomorrow to get through ten
witnesses. By then the People may have had a chance to execute the
arrest warrant body writs for these two gentlemen.
“The Court will deny the motion for continuance.
I will swear the jury in in 15, 20 minutes. Perhaps you might want
to send the police out to find these two gentlemen.” Id., at
8–9.
After a brief recess, the court offered to delay
the start of the trial for several more hours if the continuance
would “be of any help” to the State. Id., at 9. But when the State
made clear that Binion and Scott’s “whereabouts” remained
“unknown,” the court concluded that the delay “would be a further
waste of time.” Id., at 10. The following colloquy ensued:
“THE COURT: . . . . It’s a
quarter to eleven and [Binion and Scott] 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.” Id., at 10–11.
The jury was then sworn. After instructing the
jury, the court directed the State to proceed with its opening
statement. The prosecutor demurred: “Your Honor, respect- fully,
the State is not participating in this case.” Id., at 20. After the
defense waived its opening statement, the court directed the State
to call its first witness. Again, the prosecutor demurred:
“Respectfully, your Honor, the State is not participating in this
matter.” Ibid. The defense then moved for a judgment of
acquittal:
“[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, ag- gravated
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 the motion for
a directed finding and dismiss the charges.” Id., at 21.
B
The State appealed, arguing that the trial
court should have granted a continuance. Martinez responded that
the State’s appeal was improper because he had been acquitted. The
Illinois Appellate Court sided with the State, holding that
jeopardy had never attached and that the trial court had erred in
failing to grant a continuance. 2011 IL App (2d) 100498, ¶¶46,
53–56, 969 N.E.2d 840, 854, 856–858.
The Illinois Supreme Court granted review on the
jeopardy issue and affirmed. 2013 IL 113475, 990 N.E.2d 215. It
began by recognizing that “[g]enerally, in cases of a jury trial,
jeopardy attaches when a jury is empaneled and sworn, as that is
the point when the defendant is ‘ “put to trial before the
trier of the facts.” ’ ” Id., ¶23, 990 N. E. 2d, at 222
(quoting Serfass v. United States,
420 U.S.
377, 394 (1975) ). But it reasoned that under this Court’s
precedents, “ ‘ “rigid, mechanical” rules’ ” should
not govern the inquiry into whether jeopardy has attached. 2013 IL
113475, ¶24, 990 N. E. 2d, at 222 (quoting Serfass, supra, at
390). Rather, it opined, the relevant question is whether a
defendant “was ‘ “subjected to the hazards of trial and
possible conviction.” ’ ” 2013 IL 113475, ¶24, 990
N. E. 2d, at 222 (quoting Serfass, supra, at 391).
Here, the court concluded, Martinez “was never
at risk of conviction”—and jeopardy therefore did not
attach—because “[t]he State indicated it would not participate
prior to the jury being sworn.” 2013 IL 113475, ¶39, 990 N. E.
2d, at 224. And because Martinez “was not placed in jeopardy,” the
court held, the trial “court’s entry of directed verdicts of not
guilty did not constitute true acquittals.” Id., ¶40, 990
N. E. 2d, at 225. Indeed, the court remarked, the trial court
“repeatedly referred to its action as a ‘dismissal’ rather than an
acquittal.” Ibid.
Justice Burke dissented, writing that the
majority’s conclusion “that impaneling and swearing the jury had no
legal significance” ran “contrary to well-established principles
regarding double jeopardy.” Id., ¶57, 990 N. E. 2d, at 227.
Moreover, she argued, its assertion that Martinez was not in danger
of conviction was “belied by the actions of the court and the
prosecutor.” Id., ¶63, 990 N. E. 2d, at 229. She explained
that under the majority’s holding, the State could “unilaterally
render a trial a ‘sham’ simply by refusing to call witnesses after
a jury has been selected.” Id., ¶64, 990 N. E. 2d, at 229.
II
This case presents two issues. First, did
jeopardy attach to Martinez? Second, if so, did the proceeding end
in such a manner that the Double Jeopardy Clause bars his retrial?
Our precedents clearly dictate an affirmative answer to each
question.
A
There are few if any rules of criminal
procedure clearer than the rule that “jeopardy attaches when the
jury is empaneled and sworn.” Crist, 437 U. S., at 35; see
also United States v. Martin Linen Supply Co.,
430 U.S.
564, 569 (1977) ; Serfass, supra, at 388; 6 W. LaFave, J.
Israel, N. King, & O. Kerr, Criminal Procedure §25.1(d) (3d ed.
2007).
Our clearest exposition of this rule came in
Crist, which addressed the constitutionality of a Montana statute
providing that jeopardy did not attach until the swearing of the
first witness. As Crist explains, “the precise point at which
jeopardy [attaches] in a jury trial might have been open to
argument before this Court’s decision in Downum v. United States,
372
U.S. 734 [(1963)],” in which “the Court held that the Double
Jeopardy Clause prevented a second prosecution of a defendant whose
first trial had ended just after the jury had been sworn and before
any testimony had been taken.” 437 U. S., at 35. But Downum
put any such argument to rest: Its holding “necessarily pinpointed
the stage in a jury trial when jeopardy attaches, and [it] has
since been understood as explicit authority for the proposition
that jeopardy attaches when the jury is empaneled and sworn.”
Crist, supra, at 35.
The Illinois Supreme Court misread our
precedents in suggesting that the swearing of the jury is anything
other than a bright line at which jeopardy attaches. It relied on
Serfass, understanding that case to mean “that in assessing whether
and when jeopardy attaches, ‘ “rigid, mechanical” rules’
should not be applied.” 2013 IL 113475, ¶24, 990 N. E. 2d, at
222. Under Serfass, the court reasoned, the relevant question is
whether a defendant was as a functional matter
“ ‘ “subjected to the hazards of trial and possible
conviction.” ’ ” 2013 IL 113475, ¶24, 990 N. E. 2d,
at 222.
But Serfass does not apply a functional approach
to the determination of when jeopardy has attached. As to that
question, it states the same bright-line rule as every other case:
Jeopardy attaches when “a defendant is ‘put to trial,’ ” and
in a jury trial, that is “when a jury is empaneled and sworn.” 420
U. S., at 388. Indeed, Serfass explicitly rejects a functional
approach to the question whether jeopardy has attached. See id., at
390 (refuting the defendant’s argument that “ ‘constructiv[e]
jeopardy had attached’ ” upon the pretrial grant of a motion
to dismiss the indictment, which the defendant characterized as
“the ‘functional equivalent of an acquittal on the merits’ ”).
The Serfass Court acknowledged “that we have disparaged ‘rigid,
mechanical’ rules in the interpretation of the Double Jeopardy
Clause.” Ibid. But it was referring to the case of Illinois v.
Somerville,
410 U.S.
458 (1973) , in which we declined to apply “rigid, mechanical”
reasoning in answering a very different question: not whether
jeopardy had attached, but whether the manner in which it
terminated (by mistrial) barred the defendant’s retrial. Id., at
467. By contrast, Serfass explains, the rule that jeopardy attaches
at the start of a trial is “by no means a mere technicality, nor is
it a ‘rigid, mechanical’ rule.” 420 U. S., at 391. And
contrary to the Illinois Supreme Court’s interpretation, Serfass
creates not the slightest doubt about when a “trial” begins.
The Illinois Supreme Court’s error was
consequential, for it introduced confusion into what we have
consistently treated as a bright-line rule: 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. [
3 ]
Martinez was subjected to jeopardy because the jury in his case was
sworn.
B
“ ‘[T]he conclusion that jeopardy has
attached,’ ” how- ever, “ ‘begins, rather than ends, the
inquiry as to whether the Double Jeopardy Clause bars
retrial.’ ” Id., at 390. The remaining question is whether the
jeopardy ended in such a manner that the defendant may not be
retried. See 6 LaFave §25.1(g) (surveying circumstances in which
retrial is and is not allowed). Here, there is no doubt that
Martinez’s jeopardy ended in a manner that bars his retrial: The
trial court acquitted him of the charged offenses. “Perhaps the
most fundamental rule in the history of double jeopardy
jurisprudence has been that ‘[a] verdict of acquittal
. . . could not be reviewed . . . without
putting [a defendant] twice in jeopardy, and thereby violating the
Constitution.’ ” Martin Linen, supra, at 571.
“[O]ur cases have defined an acquittal to
encompass any ruling that the prosecution’s proof is insufficient
to establish criminal liability for an offense.” Evans v. Michigan,
568 U. S. ___, ___ (2013) (slip op., at 4–5). And the trial
court clearly made such a ruling here. After the State declined to
present evidence against Martinez, his counsel moved for “directed
findings of not guilty to both counts,” and the court “grant[ed]
the motion for a directed finding.” Tr. 21. That is a textbook
acquittal: a finding that the State’s evidence cannot support a
conviction.
The Illinois Supreme Court thought otherwise. It
first opined that “[b]ecause [Martinez] was not placed in jeopardy,
the [trial] court’s entry of directed verdicts of not guilty did
not constitute true acquittals.” 2013 IL 113475, ¶40, 990
N. E. 2d, at 225. But the premise of that argument is
incorrect: Martinez was in jeopardy, for the reasons given above.
The court went on to “note that, in directing findings of not
guilty,” the trial court “referred to its action as a ‘dismissal’
rather than an acquittal.” Ibid. Under our precedents, however,
that is immaterial: “[W]e have emphasized that what constitutes an
‘acquittal’ is not to be controlled by the form of the judge’s
action”; it turns on “whether the ruling of the judge, whatever its
label, actually represents a resolution . . . of some or
all of the factual elements of the offense charged.” Martin Linen,
430 U. S., at 571; see also Evans, supra, at ___ (slip op., at
11) (“Our decision turns not on the form of the trial court’s
action, but rather whether it ‘serve[s]’ substantive ‘purposes’ or
procedural ones”); United States v. Scott,
437 U.S.
82, 96 (1978) (“We have previously noted that ‘the trial
judge’s characterization of his own action cannot control the
classification of the action’ ”).
Here, as in Evans and Martin Linen, the trial
court’s action was an acquittal because the court “acted on its
view that the prosecution had failed to prove its case.” Evans,
supra, at ___ (slip op., at 11); see Martin Linen, supra, at 572
(“[T]he District Court in this case evaluated the Government’s
evidence and determined that it was legally insufficient to sustain
a conviction”). And because Martinez was acquitted, the State
cannot retry him. [
4 ]
III
The functional rule adopted by the Illinois
Supreme Court is not necessary to avoid unfairness to prosecutors
or to the public. On the day of trial, the court was acutely aware
of the significance of swearing a jury. It repeatedly delayed that
act to give the State additional time to find its witnesses. It had
previously granted the State a number of continuances for the same
purpose. See supra, at 2. And, critically, the court told the State
on the day of trial that it could “move to dismiss [its] case”
before the jury was sworn. Tr. 3. Had the State accepted that
invitation, the Double Jeopardy Clause would not have barred it
from recharging Martinez. Instead, the State participated in the
selection of jurors and did not ask for dismissal before the jury
was sworn. When the State declined to dismiss its case, it
“ ‘took a chance[,] . . . enter[ing] upon the trial
of the case without sufficient evidence to convict.’ ” Downum
v. United States,
372
U.S. 734, 737 (1963) . Here, the State knew, or should have
known, that an acquittal forever bars the retrial of the defendant
when it occurs after jeopardy has attached. The Illinois Supreme
Court’s holding is understandable, given the significant
consequence of the State’s mistake, but it runs directly counter to
our precedents and to the protection conferred by the Double
Jeopardy Clause.
* * *
The motion for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted. The
judgment of the Supreme Court of Illinois is reversed, and the case
is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.