A conversation that happens fairly regularly with defendants early in the representation describes the options available. While the relative merit of one over another depends on the case and the risk tolerance of the individual, the options generally remain the same: Plead guilty, cooperate or go to trial. As part of the discussion, I tell my clients that there is no option where he can say, “sorry, it was all a big mistake, so how about we just call it even and everybody go home?”
Maybe I’m wrong. From Gideon at A Public Defender:
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.
THE 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.”
This is where defense counsel’s mind is racing, wondering, is somebody screwing with me? Is there some trick I’m missing? What just happened here? The source of the confusion is that this doesn’t happen. It would appear that Illinois has no speedy trial statute, limiting the length of time the prosecution has to be ready for trial, which would have ended this mess otherwise. Instead, it dragged on for at least two years while the prosecution was witnessless and incapable of proving its case.
There is no question that upon the empaneling and swearing in of the jury, jeopardy attaches for the purpose of invoking double jeopardy. A defendant is entitled to have his case tried to the empaneled jury (with some exceptions that aren’t relevant here), and yet, the Illinois Supreme Court decided to go all “technical” here and determine that jeopardy didn’t really attach because there was no possibility that the defendant would be convicted since the prosecution refused to participate.
Refused to participate? So that’s now an option? Cool!
With the minor proviso that it be available to both sides, I’m 100% behind the prosecution on this one. We can just take our ball and go home, end of story.
Except I don’t foresee the Supreme Court giving the defense the option of deciding not to play and going home. It’s not that they won’t allow us to not participate, to the extent the 6th Amendment right of a defendant to effective assistance of counsel doesn’t come into play, whether it involves sleeping through the boring parts or engaging no effective tactics providing we give the appearance of standing up to make the occasional objection and cross-examine the prosecution’s witness on his true name and badge number. But aside from that, the ensuing conviction will more than suffice to imprison.
Where does the prosecution come up with the authority (it has no rights, remember, because rights are those things afforded people and it’s the government, not the People) to decide it doesn’t want to play? Well, it does indeed have that authority, which is usually described as the exercise of executive discretion. The prosecution can decide not to prosecute any damn time it wants. But what that does not mean is that it can string a case along forever, because the Constitution also gives a defendant the right to a speedy trial, or get a do-over after a jury has been sworn.
What this case really challenges is the bright-line test of jeopardy, which may not be quite what a defendant would consider the threat of conviction which begins when he’s first brought before a judge to answer the accusation, but rather when he’s agreed to the peers who will comprise his jury. The benefit of bright-line tests is that you know the rules of the game, even if they aren’t quite the rules the defense prefers.
The Illinois Supreme Court’s decision rejects the bright-line test, instead looking at the definition of jeopardy to determine whether, in its opinion, the defendant was really at risk of conviction. The elimination of the bright-line test in favor of the subjective assessment of whether the defendant is really in jeopardy opens up a world of possibilities, few of which are good for a defendant.
However, if the Supremes are open to the defense announcing that it declines to participate, and the defendant gets to go home, then let’s have at it. Otherwise, the prosecution should have dismissed the case, cut the defendant loose and, when they found their witnesses, recommenced the prosecution if they were still within the Statute of Limitations and hadn’t worn out their speedy trial time. Because there is still a Constitution, and it only affords rights to people, not the government, when they can’t prove their case regardless of the reason.
Update: In a per curiam opinion, the Supreme Court held that the Illinois Supreme Court is batshit crazy and reversed. If the state chooses not to play, they suffer the consequences.