Sunday, June 1, 2014

“THE COURT: Very well. We’ll see how that works.”

From Kate Sumbler
When uttered by a judge, the phrase: "Very well.  We'll see how that works." is a warning not be be ignored.  When a certain judicial schadenfreude is implied by those words, it is time to reevaluate one's strategy.  Reevaluation was not on the mind of one Illinois prosecutor who refused to dismiss his case despite that he had no witnesses and was certain to lose.  Instead, the prosecutor permitted a jury to be sworn, having notified the judge that ". . . the State will not be participating in the trial. I wanted to let you know that."  The defense then moved for a directed verdict, asking the court to enter findings of not guilty to the charges, which the court did. 

You might ask, why would the prosecutor want to try a case with no evidence?  Fair question.  It would not be going out on a limb to infer that the prosecutor felt that he had been treated unfairly. The prosecutor had asked for a continuance to try to bring forth the witnesses at a later date.  The judge denied the prosecutor's motion, having granted continuances previously in the case.  Rather than dismiss the case so that it could be retried later, the prosecutor, wanting to challenge the judge's ruling, believed that he could proceed through trial not really participating, and appeal the judge's denial of the motion to continue in hopes of a future retrial.  In its per curiam opinion, which is a voice used by a court as a whole, the United States Supreme Court reminded the prosecutor of a bedrock day 1 rule of law:

There are few if any rules of criminal procedure clearer than the rule that “jeopardy attaches 
when the jury is empaneled and sworn.”

Because the jury had been sworn "jeopardy had attached," meaning that for purposes of "double jeopardy" the defendant had been tried, and could not be tried again for the same offenses. Therefore, the prosecutor lost his appeal, and the defendant's acquittal will remain intact.  We could say that the prosecutor was successful in not trying to try the defendant, but unsuccessful in not trying the defendant.