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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This case lies at the intersection of one of the most important means of protecting the integrity of state criminal justice systems, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the most potent weapon in the defendant's criminal procedure arsenal, double jeopardy. The Sixth Circuit merely paid lip service to the deferential standard of 28 U. S. C. §2254(d), by quoting the provision and then refusing to apply it to the case. Instead of determining whether the Michigan Supreme Court's decision reasonably applied this Court's precedents, the Sixth Circuit made its own determination of whether the trial court violated the Double Jeopardy Clause. This is precisely what Congress intended to prevent when it enacted the AEDPA.

The Sixth Circuit's refusal to follow the AEDPA is compounded by its faulty double jeopardy analysis. It held that an oral indiction of an intent to acquit is an acquittal in spite of the lack of a final judgment or the numerous subsequent actions of the trial court that were inconsistent with granting an acquittal. This would turn double jeopardy into a windfall for lucky defendants. Because a successful double jeopardy defense prevents retrial, it is imperative that the boundaries of what constitutes an acquittal be clearly established, so that double jeopardy remains an important, but limited, constitutional protection rather than a trap for the unwary trial court. The Sixth Circuit's failure to follow the AEDPA and the minefield it would lay for trial courts are contrary to the interests of justice and society that the CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Markeis Jones was shot to death during a confrontation between two groups of young people at Hamady High School in Flint, Michigan. People v.Vincent, 565 N. W. 2d 629, 630 (Mich. 1997). The defendant, Duyonn Vincent, was there with two friends, none of whom attended the school. Ibid. There was evidence that the shooting was gang related. See ibid. An encounter between the two groups led to arguing, pushing, and shoving. During the encounter, the fatal shots were fired from the back of a Mustang. Testimony indicated that the defendant and a co-defendant, Deamon Perkins, fired the shots. The other co-defendant, Marcus Hopkins, drove the car away during the shooting. There was evidence that the shots missed their intended victim, while killing Jones, a friend of the defendants. See ibid.

The three defendants were charged with murder and felony firearm and were tried at one trial before two separate juries. Ibid. At the close of the prosecution's case, all three defendants moved for a direct verdict of acquittal on the first-degree murder charge. See ibid. After the defense completed its argument for the motion, the trial court judge made the following statement:

"Well my impression at this time is that there's not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is Second Degree Murder. I don't see that the participation of any of the defendants is any different then anyone else as I hear the comment made by Mr. Doll [counsel for Perkins] about the short time in which his client was in the vehicle. But I think looking at it in a broad scope as to what part each and every one of them played, if at all, in the event that it's not our premeditation planning episode. It may very well be the circumstance for bad judgement was used in having weapons but the weapons themselves may relate to a type of intent, but don't necessarily have to show the planning of premeditation. I have to consider all the factors. I think that the second Count should remain as it is, felony firearm. And I think that Second Degree Murder is an appropriate charge as to the defendants. Okay." Ibid.

The jury was not present during this discussion. Before adjournment, the prosecutor asked for time the next day " 'to make a brief restatement in terms of First Degree Murder . . . .' " Ibid. The judge stated that he would " 'be glad to hear it . . . [and that he was] always glad to hear [the] people.' " Ibid. After hearing the prosecution's argument the next day, the judge decided to reserve his ruling on the motion until he thought more about it. Id., at 630-631. Defense counsel asserted that double jeopardy prevented reconsideration because the court had already granted an acquittal. See id., at 631. The judge replied that " 'I haven't directed a verdict to anybody . . . . Oh, I granted a motion but I have not directed a verdict.' " Ibid. Vincent was convicted of first-degree murder. See ibid.

A Michigan Court of Appeals reversed Vincent's conviction on the first-degree murder count, holding that this murder conviction violated his double jeopardy rights. See id., at 632. The Michigan Supreme Court reversed. After extensively analyzing the statement and the relevant Supreme Court precedent on double jeopardy, it held that the trial judge was simply thinking out loud when he made the statement. The statement should have no "final or binding effect until formally incorporated into the findings, conclusions, or judgment." Id., at 635. Since there was no "clear statement in the record or a signed order in the judgment articulating the reasons for granting or denying the motion" there was no acquittal and therefore no double jeopardy violation. See id., at 636.

Defendant filed a federal habeas petition on January 8, 1998, in the United States District Court for the Eastern District of Michigan. See Vincent v. Jones, 292 F. 3d 506, 509-510 (CA6 2002). The District Court concluded that the first-degree murder conviction violated the Double Jeopardy Clause of the Fifth Amendment and granted the writ. See id., at 510. The Sixth Circuit affirmed in a brief opinion which stated the deferential standard of 28 U. S. C. §2254(d)(1) & (2), see ibid., but never applied it to its analysis. See id., at 511-512. Instead, the court simply concluded that the trial court's statement constituted an acquittal with respect to first-degree murder, and that the subsequent first-degree murder conviction violated double jeopardy. See id., at 512. This Court granted certiorari on January 10, 2003.

SUMMARY OF ARGUMENT

The Sixth Circuit did not apply 28 U. S. C. §2254(d) to this case, but merely paid lip service to the law. Except for reciting the statutory language and a citation to Williams v. Taylor, 529 U. S. 362 (2000), the decision below makes no use of this provision. Instead it only analyzes whether the trial court's actions violated the Double Jeopardy Clause. The opinion does not examine the detailed double jeopardy analysis of the Michigan Supreme Court's opinion affirming the conviction. This is a total failure to apply the Antiterrorism and Effective Death Penalty Act of 1996, making it necessary to begin the §2254(d) analysis from scratch.

This case demonstrates that the relevant clearly established rules must be defined at an appropriate level of abstraction for §2254(d) analysis. This Court has recognized many general principles behind the Double Jeopardy Clause. Applications of Teague v. Lane, 489 U. S. 288 (1989) and qualified immunity both demonstrate that defining the relevant rule at too high a level of abstraction renders such standards meaningless. If the relevant rule is sufficiently abstract, then any imagined rule can be dictated by it, subverting Teague, or an officer's action can always unreasonably violate it, subverting qualified immunity. These problems pose similar threats to §2254(d)'s deferential standards. The general principles of double jeopardy are too abstract to govern the §2254(d) analysis.

This Court's double jeopardy cases provide some rules that are sufficiently concrete to govern this case. These rules can be summarized into four points. First, granting an acquittal is the most serious action a trial court can take because acquittals cannot be appealed no matter how erroneous. Second, what constitutes an acquittal for double jeopardy purposes is not decided by the label attached to it, but by determining whether the action resolved some or all of the factual elements of the crime in the defendant's favor. Third, other terminations of the case in the defendant's favor, whether before or after the verdict, are not protected by double jeopardy. Fourth, in order to invoke double jeopardy, it must be plain that the action terminating the case was an acquittal.

The Michigan Supreme Court applied these principles. It cited Supreme Court precedent for the points that the label attached to the trial court's actions did not determine whether there was an acquittal. It also cited this Court's precedent for the point that an entry of acquittal would bar further proceedings due to the Double Jeopardy Clause. This effectively covers the first three principles. The Michigan Supreme Court also stated the fourth principle, that acquittals must be clear, without citing Supreme Court precedent. Such citation is unnecessary for compliance with §2254(d)'s "clearly established" prong.

Michigan's high court reasonably applied these principles to this case. It was confronted with a potentially difficult case, due to the tension between the trial court's initial statement and its subsequent actions. While the initial statement indicated an intent to grant an acquittal, every other action of the trial court after the statement argues to the contrary. In this context, the decision to apply the principle that acquittals must be clear in order to terminate jeopardy was not merely reasonable, it was right.

Acquittals must be clear because of the awesome finality accorded to them through the Double Jeopardy Clause. Requiring clear acquittals prevents defendants from receiving unjust windfalls, and allows appellate courts to distinguish between appealable dismissal and unappealable acquittals.

This decision is also consistent with this Court's holdings rejecting labels in acquittal analysis. There are no magic words that transform a trial court's actions into an acquittal. Instead, reviewing courts look to what was done and the reasons given for the actions. Here, the trial court thought out loud about acquitting the defendant on the first-degree murder charge, allowed the prosecution to respond, and then proceeded to act as if it decided not to acquit. This is not an acquittal.

The trial court's actions lacked the necessary finality that double jeopardy requires. While acquittals terminate jeopardy, an action of a court is not an acquittal until it is final. For example, a finding on appeal that there was insufficient evidence to convict bars retrial; it does not bar further appeal. If the initial decision is reversed on appeal or reconsideration, there was no acquittal. Similarly, a trial court's action should not be an acquittal until something resembling a final judgment is entered. Since there is nothing like that in this case, there was no acquittal, making the Michigan Supreme Court's opinion correct.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.