Martinez v. Illinois

                  Cite as: 572 U. S. ____ (2014)            1

                           Per Curiam

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 pre­
sent 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 convic­
tion.” 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
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                             Per Curiam

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 No­
vember 9, and the State reissued subpoenas. But Novem­
ber 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
——————
  1 Much of that delay was due to Martinez and his counsel. See 2013

IL 113475, ¶4, n. 1, 990 N. E. 2d 215, 216, n. 1 (summarizing the
lengthy procedural history).
  2 These facts are set forth in the opinion of the Illinois Appellate

Court. 2011 IL App (2d) 100498, ¶¶5–7, 969 N. E. 2d 840, 842–843.
                 Cite as: 572 U. S. ____ (2014)            3

                          Per Curiam

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 Po­
    lice Department would know their whereabouts. They
    were ordered to be in court today. The Court will is­
    sue 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 antici­
    pate it would take every bit of today and most of to­
    morrow 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” re­
mained “unknown,” the court concluded that the delay
“would be a further waste of time.” Id., at 10. The follow­
ing 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 ap­
    proach briefly?
      “THE COURT: Yes.
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                         Per Curiam

       “[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 par­
    ticipating 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 state­
ment. 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 ev­
    idence 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 acquit­
ted. 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.
                  Cite as: 572 U. S. ____ (2014)              5

                           Per Curiam

2011 IL App (2d) 100498, ¶¶46, 53–56, 969 N. E. 2d 840,
854, 856–858.
   The Illinois Supreme Court granted review on the jeop­
ardy 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 prec­
edents, “ ‘ “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 di­
rected verdicts of not guilty did not constitute true acquit­
tals.” 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 prin­
ciples 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
6                   MARTINEZ v. ILLINOIS

                         Per Curiam

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 “nec­
essarily 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
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                           Per Curiam

than a bright line at which jeopardy attaches. It relied on
Serfass, understanding that case to mean “that in as­
sessing 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 defend­
ant 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 de­
fendant’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 answer­
ing 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 at­
taches at the start of a trial is “by no means a mere tech­
nicality, nor is it a ‘rigid, mechanical’ rule.” 420 U. S., at
391. And contrary to the Illinois Supreme Court’s inter­
pretation, Serfass creates not the slightest doubt about
when a “trial” begins.
   The Illinois Supreme Court’s error was consequential,
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                              Per Curiam

for it introduced confusion into what we have consistently
treated as a bright-line rule: A jury trial begins, and jeop­
ardy 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 of­
fenses. “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 estab­
lish criminal liability for an offense.” Evans v. Michigan,
568 U. S. ___, ___ (2013) (slip op., at 4–5). And the trial
——————
  3 Some commentators have suggested that there may be limited ex­

ceptions to this rule—e.g., where the trial court lacks jurisdiction or
where a defendant obtains an acquittal by fraud or corruption. See 6
W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §25.1(d)
(3d ed. 2007). The scope of any such exceptions is not presented here.
Nor need we reach a situation where the prosecutor had no opportunity
to dismiss the charges to avoid the consequences of empaneling the
jury. Cf. People v. Deems, 81 Ill. 2d 384, 387–389, 410 N. E. 2d 8, 10–11
(1980).
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                           Per Curiam

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 jeop­
ardy, 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 argu­
ment is incorrect: Martinez was in jeopardy, for the rea­
sons 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
10                      MARTINEZ v. ILLINOIS

                               Per Curiam

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 num­
ber 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 conse­
quence of the State’s mistake, but it runs directly counter
to our precedents and to the protection conferred by the
Double Jeopardy Clause.

——————
  4 Indeed, even if the trial court had chosen to dismiss the case or de­

clare a mistrial rather than granting Martinez’s motion for a directed
verdict, the Double Jeopardy Clause probably would still bar his retrial.
We confronted precisely this scenario in Downum v. United States, 372
U. S. 734 (1963), holding that once jeopardy has attached, the absence
of witnesses generally does not constitute the kind of “ ‘extraordinary
and striking circumstanc[e]’ ” in which a trial court may exercise
“discretion to discharge the jury before it has reached a verdict.” Id., at
736; see also Arizona v. Washington, 434 U. S. 497, 508, n. 24 (1978).
                  Cite as: 572 U. S. ____ (2014) 
          11

                           Per Curiam


                         *     *    * 

  The motion for leave to proceed in forma pauperis and
the petition for a writ of certiorari are granted. The judg­
ment 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.