Reversing a decision handed down less than 40 months ago, the Supreme Court redefined "acquittal" yesterday to let prosecutors try some criminal defendants twice.
All of the justices in yesterday's 5-to-4 majority had joined in the 1975 case, which, they said, was "wrongly decided" by a unanimous court.
The extraordinary reversal drew charges by the dissenters that the new, narrower definition of "acquittal" is "literally incapable of principled application" and can cause "only confusion" among thousands of federal and state judges by depriving them of 'meaningful guidance."
The controversy centers on the guarantee of the Fifth Amendment to the Constitution that no person "shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."
The government had no right of appeal in a criminal case until 1907, when Congress authorized a limited one. Under a 1971 law, the government can appeal any dismissal of an indictment except "where the double jeopardy clause . . . prohibits further prosecution."
In the unanimous 1975 decision, which was affirmed only last year, the court held that an indictment dismissed while a trial is under way amounts to an "acquittal" even though it isn't a jury verdict and can't be appealed.
The court cited the "deeply ingrained" idea underlying the clause "that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
Justice William H. Rehnquist wrote the opinion in 1975 as well as the opinion reversing it, being joined both times by Chief Justice Warren E. Burger and Justice Potter Stewart, Harry A. Blackburn and Lewis F. Powell Jr.
Yesterday, noting "our vastly increased exposure to the various facets of the double jeopardy clause," Rehnquist said that a defendant isn't acquitted when he becomes "responsible for the second prosecution" by seeking to terminate his trial before a verdict is rendered.
By shielding a defendant who tries to cut short a trial "on grounds unrelated to factual guilt or innocence," the 1975 decision put "an unwarrantedly great emphasis on the defendant's right to have his guilt determined by the first jury empaneled to try him," Rehnquist said.
The defendant in yesterday's case, John A. Scott, a Muskegon, Mich., policeman, was indicted on charges of distributing narcotics. He successfully moved for dismissal of the indictment on the grounds that it was returned six months after the alleged distribution occured - a delay so great that it prejudiced his defense. Relying on the 1975 decision, the 6th U.S. Circuit Court of Appeals upheld the dismissal.
Emphasizing that the prosecution was "quite willing" to try to prove Scott guilty, Rehnquist pictured him as an accused "who chooses to avoid conviction and imprisonment, not because of his assertion that the government has failed to make out a case against him, but because of a legal claim that the government's case must fail even though it might satisfy" the trail court that he was guilty beyond a reasonable doubt.
The dissenters said that the majority's "wholly arbitrary" line between accquittals related to "factual innocence" and other final judgements for defendants bears "no conceivable relationship to the policies protected by the double jeopardy clause."
The court also "indefensibly" restricited the definition of "acquittal" so that, for example, a dismissal for entrapment or insanity is barred while one for pre-indictment delay is not, Justice William J. Brennan Jr. wrote.
Joined by Justices Byron R. White, Thurgood Marshall and John Paul Stevens, Brennan said that any trial after a final judgement for an accused "threatens intolerable interference" with the protections against double jeopardy.
In other double jeopardy decisions, the court ruled:
5 to 4 that the federal rule attaching jeopardy when the jury is empaneled and sworn prevails over a Montana rule that it doesn't attach until the first witness is sworn.
8 to 0, in two separate cases, that a state may not retry a defendant if an appeals court reverses a conviction because the evidence to sustain it was insufficient.
7 to 2, in a case with "somewhat unusual facts," that the government cannot appeal a mid-trial ruling that results in the exclusion of certain evidence and, later, in a judgment of acquittal.