COSA Dissent Watch: Post-mistrial Acquittals and Double Jeopardy
The case: State v. Johnson, Sept. Term 2015, No. 0189 (June 29, 2016)
The questions: Does a circuit court have fundamental jurisdiction to acquit a defendant after the grant of a mistrial? Does such an acquittal bar further prosecution even if court relies on evidence that is technically not before it?
The facts: During the trial of Michael Johnson for murder, some recordings of intercepted phone calls were played for the jury. Although the court had ordered that certain portions of the tapes — discussing a friend of Johnson’s contacting an attorney, and a reference to a warrant with murder charges — be redacted, they weren’t, and Johnson moved for a mistrial. The court withheld its ruling on the motion.
After the State rested its case, the defense additionally moved for acquittal. The court delayed a decision on that as well. Then, after resuming proceedings, the court granted the previous motion for mistrial and discharged the jury.
When the parties returned to schedule a new trial, the defense moved for acquittal again. Later calling the grant of the mistrial a “procedural misstep,” the court reconsidered it, struck the prior order for mistrial, and granted the motion for acquittal. The State thereafter filed a new indictment, which Johnson moved to dismiss on double-jeopardy grounds. The court ruled that the acquittal barred the new indictment and dismissed it, leading to the appeal.
The majority (Wright, joined by Woodward): The majority started with a baseline premise that an acquittal bars further prosecution if the court has “fundamental jurisdiction,” which, citing Pulley v. State, 287 Md. 406, 416 (1980), was defined as “a court’s general authority to carry out its constitutional and legal mandates with regard to a given case.” This was in contrast to “proprietary jurisdiction,” defined as the court’s authority to undertake a “narrow” action within a case. Seemingly combining these two concepts, the majority held that a “court may act within its general authority in issuing a ruling, but at the same time err in the manner in which it exercises its power.”
Citing Harrod v. State, 423 Md. 24, 35 (2011), the majority ruled that the grant of the mistrial rendered the trial a nullity and created an entirely new prosecution. Because the trial was a nullity, the majority reasoned, the court lacked fundamental jurisdiction to thereafter acquit the defendant — especially given that, as the majority saw it, the acquittal occurred in the prior, pre-mistrial prosecution, and not in “the pending criminal proceeding.” Although another case finding no double jeopardy in a substantially identical situation, Sirbaugh v. State, 27 Md. App. 290 (1975) (later reaffirmed by Mularkey v. State, 188 Md. App. 126 (2009)), didn’t address fundamental jurisdiction, the majority found its result “consistent with such principle in the context of a mistrial.” Moreover, the majority used the nullity of the trial and the supposedly new prosecution as the basis for distinguishing two Court of Appeals cases suggesting a different outcome: State v. Taylor, 371 Md. 617 (2002) (acquittal bars further prosecution even when improperly granted in pretrial motions and based on consideration of extrinsic evidence), and Block v. State, 286 Md. 266 (1979) (jeopardy still attaches to acquittal rendered beyond permissible time for reconsideration of verdict).
The dissent (Friedman): Judge Friedman’s focus was on the reality of the situation: A judge heard all the evidence and deemed it insufficient to support a conviction. He understood Taylor, Block, and Parojinog v. State, 282 Md. 256 (1978), as deciding that an acquittal creates a double-jeopardy bar to further prosecution as long as the court has subject matter and personal jurisdiction. Believing that there was a “sufficient residue of jurisdiction to allow the trial court to grant the judgment of acquittal,” Judge Friedman would have held that jeopardy attached and he could not be tried again on the charges. He did acknowledge that, pursuant to Malarkey’s reaffirmation of Sirbaugh, the grant of a mistrial deprives the trial court of jurisdiction to rule on a motion for judgment of acquittal. As he saw it, however, Malarkey got it wrong by failing to adhere to the Court of Appeals’ guidance in Block and Taylor and he would overrule it.
Notes: To start, it is difficult to understand what type of jurisdiction the majority is requiring in order for the acquittal to bar further prosecution. The majority accepts that the court’s having fundamental jurisdiction has that effect, which, as Judge Friedman noted, jives with Taylor and Block. As such, to the majority, the question before it was “whether the trial court had fundamental jurisdiction to rule on a motion made in a criminal proceeding in which a mistrial had been granted and the jury discharged.”
So what was the trial court’s fundamental jurisdiction? The fundamental jurisdiction — which is the same thing as subject matter jurisdiction — of the circuit courts is, as established by the Maryland constitution, all cases or controversies that aren’t “reserved by law for the exclusive jurisdiction of some other forum.” First Federated Commodity Tr. Corp. v. Commissioners of Secs. for Md., 272 Md. 329, 334-335 (1974). And, of course, no one is saying that Johnson’s criminal case was reserved by law for the exclusive jurisdiction of some other forum.
It therefore seems pretty clear-cut that the circuit court had fundamental jurisdiction (and not just a “sufficient residue” of fundamental jurisdiction) to issue rulings in Johnson’s case. That would seem to mean that the acquittal was effective for double-jeopardy purposes. In accordance with this reading of Block and Taylor, if the court is allowed to hear the case itself, an acquittal at any point will bar a subsequent prosecution.
The majority disagreed, however, “because at the time that the court ruled on the motion for judgment of acquittal, the second prosecution of [Johnson] was ‘no trial at all,’ ‘a nugatory trial,’ or ‘a trial legally of no effect.’” That is to say, and as Sirbaugh and Mularkey confirm (and no one really contests), the court lacks jurisdiction to rule on a motion for acquittal after granting a mistrial. But what kind of jurisdiction? Whether or not the trial had occurred yet or not wouldn’t be a question of fundamental jurisdiction; it would be a matter of specific actions the court was or was not permitted to take within the case itself — that is, proprietary jurisdiction.
Although the majority opines that “a trial court cannot exercise fundamental jurisdiction over subject matter that no longer exists,” the “subject matter” is not the specific procedural step of trial, it’s the criminal charge of murder. The court certainly could exercise fundamental jurisdiction of the criminal charge of murder even if the previous trial on that charge was a technical nullity. As Judge Friedman points out, this is essentially what Parojinog, Block, and Taylor all held when they ruled that, as long as there is subject matter jurisdiction, jeopardy attaches to an acquittal even if the court lacked the authority to render a verdict when it did. Given this, it’s hard to understand how the majority deduced that Sirbaugh and Mularkey — which approved the invalidation of an acquittal by a court that was unquestionably supposed to hear the case — are “consistent” with the principle of fundamental jurisdiction.
Perhaps the key lies in the majority’s interpretation of the procedural posture of the case (which also served as its way of distinguishing Taylor): that the acquittal technically occurred in a previous “nullity” prosecution and not in the context of the current proceeding. In response, Judge Friedman makes a persuasive point that there aren’t really multiple prosecutions occurring here; rather, and consistent with Harrod, it’s one proceeding that has been set back to its pretrial stage. But in either case, why wouldn’t the acquittal (regardless of when it was actually moved for) just be understood as occurring sua sponte during the new proceeding/pretrial stage?
Of course, it might not sit well that a court could pretty much acquit whenever it wants without regard for proper procedure and jeopardy would still attach. If so, the majority’s real gripe might not be about jurisdiction, but the proper basis for an acquittal. Even Judge Friedman describes the double-jeopardy effect of an acquittal as arising after a court weighs the “evidence in an attempt to determine whether it is sufficient to support a conviction.”
But that assumes that there is some evidence or facts before the trial court for it to evaluate. In Block and Parojinog, the acquittals followed a trial or adjudicatory hearing, and, in Taylor, the trial courts considered factual stipulations by the parties and a police memorandum that had been moved into evidence. Other cases applying the double-jeopardy effect of an acquittal have done so when there was “evidence … before the court,” see, e.g., Brooks v. State, 299 Md. 146, 154 (1984), or, at minimum, when the State had been given an opportunity to present evidence, see, e.g., Daff v. State, 317 Md. 678, 689 (1989).
Here, the trial court here clearly made a substantive determination of the sufficiency of the evidence before acquitting Johnson. According to the majority, however, the nullity of Johnson’s mistrial meant that “no evidence had been adduced” and “no ruling on the sufficiency of the evidence to convict could be made.” Indeed, it appears that, technically, the State hadn’t even been given an opportunity to present evidence of Johnson’s guilt. As such, perhaps the majority’s underlying concern is the double-jeopardy effect of an acquittal that couldn’t, as a matter of procedure, have been based on the sufficiency of the evidence. But, again, that’s not a problem with fundamental jurisdiction, that’s a problem with the validity of the acquittal.
Certiorari prospects: With thorny double-jeopardy issues that expose potential conflicts in appellate precedent, this is Smooth Jimmy Apollo’s “Lock Of The Week.”