Smalis v. Pennsylvania

PETITIONER:Smalis
RESPONDENT:Pennsylvania
LOCATION:United States District Court for the Western District of New York

DOCKET NO.: 85-227
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Pennsylvania

CITATION: 476 US 140 (1986)
ARGUED: Apr 02, 1986
DECIDED: May 05, 1986

ADVOCATES:
Mr. Andrew L. Frey – for United States, as amicus curiae in support of Respondents
Norma Chase – on behalf of Petitioners
Robert L. Eberhardt – on behalf of Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – April 02, 1986 in Smalis v. Pennsylvania

Warren E. Burger:

We will hear arguments first this morning in Smalis against Pennsylvania, and Ms. Chase, you may proceed whenever you are ready.

Norma Chase:

Mr. Chief Justice, and if it please the Court:

The issue in this case is the validity of Pennsylvania’s rule permitting the Commonwealth to appeal an insufficiency determination made at the close of a timely rights case.

The rule was established with very little discussion or analysis at a time when the Double Jeopardy Clause did not apply to the states.

With this case it suddenly became a rule in season of a rationale.

The defendants were charged each with two counts of murder and various lesser charges as a result of a fire in a restaurant-apartment building that they owned.

The trial was non-jury.

The case was largely circumstantial.

At the close of the Commonwealth’s case, the defendants challenged the sufficiency of the Commonwealth’s evidence.

They did this with a motion that we call a demurrer in Pennsylvania, a demurrer to the evidence.

The issue raised by a demurrer to the evidence is the same as the issue raised by a Rule 29 motion in federal court.

If it’s true, is it enough.

The court found that the evidence, even if true, was insufficient to establish beyond a reasonable doubt that either of the defendants set the fire.

Byron R. White:

When did the court hold that?

Norma Chase:

December of 1980.

Byron R. White:

I know, but at what stage of the trial?

Norma Chase:

The Commonwealth had rested, and the defendants demurred to the evidence.

Byron R. White:

So, this was mid-trial?

Norma Chase:

Yes, but the Commonwealth had rested.

The court, however, denied demurrer with respect to involuntary manslaughter and various lesser charges involving a reckless state of mind.

The District Attorney’s office appealed the order sustaining the demurrer and asked that trial of the remaining charges be stayed depending the outcome of the appeal.

The District Attorney’s office also asked for reconsideration of the order sustaining the demurrer, and the Commonwealth presently finds it significant, as they indicate at footnote 11 at page 46 of their brief, that the defendants at that juncture joined in the Commonwealth’s request that the ruling in favor of the defendants be reconsidered.

We put our reasons on the record at the time.

Defendants wanted so desperately to complete the trial on the involuntary manslaughter and the remaining charges that they were willing to suffer the reinstatement of the murder charges with all the risks that that entailed, so that they could complete the trial rather than have the trial interrupted for an appeal.

William H. Rehnquist:

Ms. Chase, in Pennsylvania do you have to demur to the evidence at the close of the prosecution’s case in order to later make a motion for judgment n.o.b. if the jury convicts you?

Norma Chase:

My understanding is, you don’t.

William H. Rehnquist:

Because I was wondering, if the defendants were so anxious to have the trial completed, they could have foregone the demurrer to the evidence.

Norma Chase:

That’s true.

They had lived in that courtroom for six weeks.

They didn’t want to be in there another six weeks putting in their defense, and they wanted to know, what charges did we already win on.

Norma Chase:

It was just, basically, a matter of economy at that point.

Byron R. White:

But, you demurred across the board?

Norma Chase:

Yes, we were interested in weeding out anything that the–

Byron R. White:

You were also interested in having a ruling on all of them, and you would like–

Norma Chase:

–Naturally.

We wanted to know where we stood with the court on all the charges, so that we should know what charges we should direct our defense to.

On reconsideration the court reaffirmed its original order.

The remaining charges were stayed over our objection pending the outcome of the appeal.

Two and a half years later the Superior Court quashed the appeal on double jeopardy grounds and invalidated the Pennsylvania rule.

They reconfirmed that decision on re-argument about a year later.

About a year ago the Supreme Court of Pennsylvania reversed and remanded to the Superior Court for consideration of the merits of the Commonwealth appeal, and it was at that juncture that we asked for certiorari.

The Commonwealth’s position, as I understand it, is that since the trial judge made no decision with respect to credibility in ruling on the sufficiency of the evidence, his decision does not go to the factual elements of the crime.

It’s unrelated to factual guilt or innocence.

Essentially, the Commonwealth looks at Scott, sees the words “factual guilt”, and thinks that this Court is saying that there is another, unrelated kind of guilt.

I can find no language in either Martin Linen or Scott that suggests that kind of distinction or that in any way suggests there has to be a credibility determination before there can be an acquittal, and I think Burks is clearly to the contrary.

Byron R. White:

–What do they mean, a credibility determination?

Norma Chase:

What they’re saying is, since the judge did not determine whether the evidence presented on behalf of the Commonwealth was true, but assumed it to be true for purposes of deciding on the demurrer, his ruling was not an acquittal.

It did not go to the merits of the case.

Byron R. White:

You mean, even accepting all of it as true, a ruling that it wasn’t enough was not an acquittal?

Norma Chase:

That’s the Commonwealth’s position.

I would submit also that this case presents a stronger case against allowing review than Martin Linen because in Martin Linen the defendant had been looking at retrial before the insufficiency decision was made, because the jury had been discharged without reaching a verdict.

Martin Linen, I believe, also discloses a manifest necessity argument.

There was clearly no mistrial here.

I believe that the Commonwealth’s argument that the defendants waived their double jeopardy rights by challenging the sufficiency of the evidence when they did is adequately answered by Sanabria.

I would add that this case presents none of the quirks of the Sanabria case.

There are no evidentiary rulings at issue here.

This was basically a circumstantial case that the trial court found did not measure up to the standard of proof beyond a reasonable doubt.

William H. Rehnquist:

Ms. Chase, you say that you think Burks supports, in your position, that it is not necessary for the trial judge to admit a credibility determination in order for double jeopardy to apply, but didn’t Burks amount to a conclusion that there was just not sufficient evidence to support a judgment of guilty?

Norma Chase:

Yes.

The Burks decision, as I understand it, did not turn on any credibility determination.

Norma Chase:

There was a conclusion in Burks that no matter what evidence the court might believe, it still is not enough.

No decision had been made in the Burks case as to credibility of witnesses, but the decision was still an acquittal.

I note that there has been some disagreement within this Court as to whether every refinement of double jeopardy law as developed in federal cases applies lock, stock and barrel to the states.

I would hope that however that debate ultimately turns out, the states will not be held to be free to avoid the finality of acquittals by calling acquittals something else when they’re entered at the close of the Commonwealth’s case, a stage well after when the defendant has been placed in jeopardy.

I would hope also that the states are not going to be free to hold that a defendant waives his Double Jeopardy rights by asking to be acquitted.

The rights involved here may not be quite as fundamental as the right not to be retried after a classic, traditional jury verdict of not guilty, but I would submit that they are certainly not peripheral or incidental to the purposes of the double jeopardy clause.

As I indicated this morning–

Byron R. White:

Well, suppose the trial is all over and there had been a conviction, but then there was a motion for n.o.b. or whatever the equivalent is, and the trial judge had then sustained it and said there wasn’t enough evidence,

“I don’t care what the jury held, there just wasn’t enough evidence. “

And, then there’s an appeal–

Norma Chase:

–In that case the verdict–

Byron R. White:

–and the judge–

Norma Chase:

–may be reinstated without placing the defendant back into jeopardy.

Byron R. White:

–That is really the point of this case, that it was midtrial and there had to be further proceedings?

Norma Chase:

Correct, that’s correct.

In Wilson, what the defendant gets from the appellate court is, go directly to jail, do not pass go.

These defendants would at least have to go back for resumption of the non-jury trial.

But here we have a situation, since this trial is non-jury, the judge in holding essentially that a reasonable doubt existed as a matter of law, was necessarily saying that there was such a doubt in his own mind.

At least, I’ve never heard a trial judge say, any reasonable person would have a doubt but this court has none.

William H. Rehnquist:

Well, one might wonder how much in the practical world this sort of situation is going to arise, because it’s hard to believe that the state is going to profit much by appealing from the sort of judgment you describe and get it reversal, only to come back and find he judge is the fact finder and he will surely feel, as a fact finder he will feel just as he did about the sufficiency of the evidence.

And, in the jury case, the thing just isn’t going to arise.

You don’t disband the jury and bring it back two years later.

Norma Chase:

I would certainly hope not.

I think the impact on different trial judges are going to be different, but there are situations in which allowing the prosecutor to walk back into court years later with an appellate opinion telling the judge how wrong he was in entertaining that doubt at the close of the prosecution’s case, is going to put some pressure on the judge to convict.

He can still acquit, but he has to find some other basis, and he’s put in the position of having to justify an acquittal at that point.

Thurgood Marshall:

Could the judge at that point acquit on the other charges under Pennsylvania law?

Norma Chase:

The other charges?

Thurgood Marshall:

Could he have added to what he said,

“And I thereby acquit on these other charges? “

Norma Chase:

If he had done that, under Pennsylvania law–

Thurgood Marshall:

But can he?

Can he do that under Pennsylvania law?

Norma Chase:

–It’s not proper, although it has been done.

There have been cases where the judge has said,

“I sustain demurrer and I find the defendant not guilty. “

Thurgood Marshall:

Right.

Norma Chase:

Appellate courts have said, the judge’s decision was improper, but it bars review.

If he uses the magic words “acquit” or “not guilty”, the decision will not be reviewable.

I would point out also that if this trial is resumed as the Commonwealth suggests, although the prosecutor doesn’t get to re-do his case in chief, he doesn’t become a bystander merely because he’s rested.

Pennsylvania law gives a party who has rested the right to re-open his case if additional evidence has come to light.

At least, rebuttal.

Norma Chase:

Yes.

He also has the right to put in evidence in rebuttal, and he also has the right to cross examine and impeach defense witnesses, perhaps with the aid of whatever he has learned in the 5-year recess.

And, I would submit that it is just not realistic to say that the risks of multiple prosecution are not presented by the resumption of a non-jury trial.

It is a second crack, and it is offensive to the letter and the spirit of the Double Jeopardy Clause.

Thank you.

John Paul Stevens:

May I ask, before you… I’m not clear.

What happens if the same judge is not available when you come back after a couple of years?

Norma Chase:

That’s never really been decided.

Some of the older cases, when they sustained a demurrer in a non-jury trial, said, reversed with a procidendo, merely said reversed with a procidendo.

More recently the practice has been simply to remand for a new trial.

The Supreme Court of Pennsylvania did not accept the alternative of resuming the non-jury trial, apparently because they wanted to hang onto a rule that let the prosecutor appeal whether the trial was jury or non-jury.

So, that’s never really been determined.

I’m aware of one case in which the non-jury trial was simply resumed on remand.

To my knowledge there have been no appellate decisions concerning that procedure.

John Paul Stevens:

Well, maybe I’m not remembering the facts.

If it were a jury trial and you had to send it back and start over again, what would he do?

He’d put in the same evidence again, is that what he’d do?

Norma Chase:

It would be the same as a mistrial situation procedurally, because trial would just start from scratch.

John Paul Stevens:

But you can’t be sure the witnesses will testify in exactly… the evidence won’t be exactly the same as it was the first time?

Norma Chase:

Right, there’s no certainty there.

John Paul Stevens:

In fact, it–

–Some could be dead.

Norma Chase:

Beg pardon?

Byron R. White:

Some could be dead.

Norma Chase:

That’s true.

I mean, obviously there are some risks to the prosecutor as well as the defense with multiple prosecutions.

Thank you.

Warren E. Burger:

Mr. Eberhardt.

Robert L. Eberhardt:

Mr. Chief Justice, and may it please the Court:

The matter before the Court raises an important question relating to the proper role of the Pennsylvania trial judge in deciding whether a criminal case shall proceed to verdict.

In the Commonwealth’s view, the trial judge in this case was not asked to sit in judgment, but rather was requested to determine that judgment could not be entered at all in this case.

The motion made below by the respondents was reflective of Pennsylvania’s desire for specificity and particularity when raising claims of sufficiency of the evidence, in the context of the legal standard to be applied in evaluating the evidence.

Clearly, a trial judge has a separate function in determining whether or not there is sufficiency of evidence factually to determine guilt, as opposed to determining whether or not the law requires that the judgment be sought in a particular case.

The Commonwealth is very aware of this Court’s discussion with regard to the talismanic nature of particular words, and the Commonwealth doesn’t want to rely on the word “demurrer” as providing any special significance in and of itself.

However, the term “demurrer” is reflective of Pennsylvania’s desire that was set forth in the case of Martin Linen Supply, that the federal system did not provide, that is, a restriction on the power of the trial judge to rule in midtrial, requests regarding the sufficiency of the evidence as a matter of law.

Now, the question that has arisen with regard to what difference would occur before this trial judge on remand, I suggest to the Court that there is a different mental process that the Court would go through in determining whether, specifically as a matter of law, the Commonwealth prosecutor has established a case within the framework of the definition of the crime as opposed to whether or not the Commonwealth, the prosecutor, has established sufficient evidence to convince a finder of fact beyond a reasonable doubt of the crime, that the crime has been committed.

There is a different mental process that I suggest is important to reflect and to be recognized in a system such as Pennsylvania’s.

Warren E. Burger:

Under Pennsylvania law, that stage is the judge sitting as the tryer alone, to decide whether, had there been a jury, he would have said there wasn’t enough evidence to go to the jury?

Robert L. Eberhardt:

Right.

Warren E. Burger:

Is that the decision he makes?

Robert L. Eberhardt:

That’s the particular request that’s made of the judge at that point in time.

Warren E. Burger:

Then, is the judge now in effect saying to the state,

“If that’s all you’ve got you haven’t got anything? “

Robert L. Eberhardt:

Right.

The court is saying that,

“With my understanding of the law and the legal definition of the crime, the evidence that you have presented does not support sufficiently the elements of the offense established by the legislative definition. “

So, whether we’re talking about a jury trial or non-jury trial with regard to the demurrer, the same standard is being requested of the court.

However, Pennsylvania goes on in its rules to recognize that at a later stage after all the evidence has been introduced in the particular matter, that the trial judge is being asked to decide a different question.

The judge is being asked in a non-jury situation for the equivalent of a verdict.

Robert L. Eberhardt:

Now, this Court has recognized that double jeopardy problems arise whenever there is a not guilty verdict entered by a jury.

Clearly, that is the classic situation where there is an application of the Double Jeopardy Clause.

What the Commonwealth is suggesting is that the Pennsylvania procedure here is not providing, at this stage in the trial, through demurrer, the equivalent of a not guilty verdict by a jury.

Byron R. White:

But there was no disagreement, as I understand it, between the trial judge and the Supreme Court of Pennsylvania on what the elements of the crime were, no legal difference except with respect to the quantum of the evidence.

Robert L. Eberhardt:

Well, we never got to argue the merits of the case below, Your Honor.

The particular appeal that was taken in Superior Court, and the delays occasioned in this appellate process, were raised as a result of the appealability question.

Warren E. Burger:

When you say you had no argument, you had no argument–

Robert L. Eberhardt:

We had no opportunity beyond presenting it in a written brief, what the Commonwealth’s argument was with regard to the–

Warren E. Burger:

–At the close of the Government’s case, do you mean?

Robert L. Eberhardt:

–No, on appeal to the Superior Court of Pennsylvania.

Warren E. Burger:

What occurred?

What was the next step that occurred after the Government rested?

Robert L. Eberhardt:

Well, in this particular case the Commonwealth rested, and demurrers were tendered by defense counsel as to all the charges before the Court.

the Court granted certain ones and denied others.

Warren E. Burger:

The Commonwealth… that was argued?

Robert L. Eberhardt:

That was argued before the lower court.

The Commonwealth found a Motion for Reconsideration which is permitted under Pennsylvania practice, that a trial court can reconsider any ruling within 30 days.

The court entertained that Motion for Reconsideration.

In fact, defense counsel requested that the court reconsider all its rulings with regard to the demurrer.

Following the court’s decision, the Commonwealth then filed an appeal to the Superior Court of Pennsylvania.

Following that appeal a motion was made to quash the appeal.

The motion was reserved for argument on the merits of the appeal.

Following arguments on the merits, a panel of the Superior Court of Pennsylvania quashed the appeal.

Then the Superior Court of Pennsylvania granted re-argument of that question and we argued again the appealability issue before the Superior Court en banc.

At no time has a court beyond the trial court reviewed as yet the question of the sufficiency of the evidence.

William H. Rehnquist:

Your suggestion, Mr. Eberhardt, is that when you’re talking about a motion like this, the trial court may have a misunderstanding as to what elements are necessary for the crime, so that it’s quite different from a credibility determination?

Robert L. Eberhardt:

It’s quite different from a credibility determination.

What we’re suggesting is, the court in measuring the sufficiency of the evidence as a framework within which it is operating, if that framework is improper or is too extensive in light of the Commonwealth’s proffer of evidence, then the court has made an error of law that it uses to resolve the question of sufficiency of the evidence.

The court is being asked, classically at common law under a demurrer, and under Pennsylvania practice, to make a legal measurement of the sufficiency of the evidence against a framework.

If the Commonwealth cannot argue on appeal that the court used the improper framework in measuring the sufficiency of the evidence, then the Commonwealth would not have the right to appeal in Pennsylvania because Pennsylvania practice limits Commonwealth appeals to pure questions of law, from final orders.

Thurgood Marshall:

Well, counsel, I’m sure I missed something, but is it true that this man is now convicted and sentenced without having an opportunity of defending–

Robert L. Eberhardt:

No, no.

There were two separate criminal episodes that were joined for trial, Justice Marshall.

The one, arson, resulted in what we viewed as a homicide.

That is the subject of this proceeding.

A separate charge of arson was joined for trial, and when the demurrers were sustained to the homicide charges, the trial court proceeded in a non-jury fashion to adjudicate the defendant guilty of that separate arson.

He has been convicted of that arson and is serving a sentence right now for that crime, that involving arson only.

Thurgood Marshall:

–I understood you to say that after the judge ruled, that there was an immediate appeal by the State.

I guess I misunderstood.

Robert L. Eberhardt:

There was an appeal as to only those charges that were the subject of a grant of demurrer under Pennsylvania practice.

Thurgood Marshall:

Then the trial took place and defense–

Robert L. Eberhardt:

Defense presented their evidence.

I don’t know whether they rested or presented their evidence.

Byron R. White:

–The trial didn’t go ahead, did it?

Robert L. Eberhardt:

The trial as to the separate arson proceeded, yes.

Thurgood Marshall:

After the appeal?

Robert L. Eberhardt:

After the appeal.

There was a severance in effect granted of a separate arson based on a different building in a different part of Allegheny County, Pennsylvania, and that case proceeded separately to verdict.

This proceeding, which involves homicide charges and causing catastrophe charges, was stayed by the trial court while the appeal process continued on those specific charges, those criminal informations.

Byron R. White:

What did the Pennsylvania Supreme Court hold?

Robert L. Eberhardt:

The Pennsylvania Supreme Court–

Byron R. White:

You did argue there?

Robert L. Eberhardt:

–Yes, we did.

They did not decide the merits of the Commonwealth’s appeal.

The Court remanded that matter, the judgment of the Supreme Court of Pennsylvania was to remand the case to the Superior Court of Pennsylvania to consider the merits of the Commonwealth’s appeal regarding the legal sufficiency of the evidence, so we have yet argue before an appellate court and have a decision with regard to the legal sufficiency of the evidence that was produced in the trial court.

What the Supreme Court of Pennsylvania held was that the Superior Court had erred in its review of the demurrer, in viewing it as the same as a Motion for Judgment of Acquittal, and the Supreme Court particularly looked at its totality of practice and its history, which was an extensive history with regard to the demurrer being appealable in Pennsylvania, and it viewed it as pure question of law unlike… and compared it to the federal rule, Rule 29… unlike the federal rule which to a certain extent may not make the classic distinction that the Pennsylvania rule attempted to make.

I might note also that the Pennsylvania rule, Rule 1124(a)-1 was promulgated by the Supreme Court after this Court’s decision in Scott, aware of the Scott decision, aware of the Martin Linen decision.

The Supreme Court through is rulemaking power, which is very broad, entered a decision that a structured rule should provide specifically for the demurrer as a separate item.

The rest of Rule 1124 looks very much like the federal rule.

Byron R. White:

Well, you say that you can only appeal on “legal” grounds in Superior… or you can only appeal on those grounds.

Byron R. White:

So, what was your case before the Superior Court?

Robert L. Eberhardt:

Our case before the Superior Court, essentially with regard to two of the crimes that were before the trial court, was the court had erred in deciding what degree of recklessness was contemplated to be required to be shown under Pennsylvania’s definition of murder as a third degree–

Byron R. White:

So, that’s the only thing that was appealed?

Robert L. Eberhardt:

–The only thing that was appealed–

Byron R. White:

That’s the only thing that is left, and so if… but if you lose those, under the Supreme Court’s ruling, the case will go back for trial?

Robert L. Eberhardt:

–The case will go back for trial.

Byron R. White:

Because the Supreme Court said that the trial court’s ruling was not a sufficient ruling on the evidence?

Robert L. Eberhardt:

Was not a question of fact but was a pure question of law, a determination of legal sufficiency, the evidence on a stated standard.

Byron R. White:

Which is a different question, a new appeal?

Robert L. Eberhardt:

The question that we appealed to the Superior Court, whether the Court erred as a matter of law in ruling that the sufficiency of the evidence was not established based upon the elements of third degree murder and causing a catastrophe.

William H. Rehnquist:

Well, won’t it be exactly that question that is pending before the Superior Court of Pennsylvania, if the judgment of the Supreme Court of Pennsylvania is affirmed here?

Robert L. Eberhardt:

That is exactly the question before the Superior Court, is the legal sufficiency of the evidence.

William H. Rehnquist:

And if the Superior Court decides in the defendant’s favor but affirms the Court of Common Pleas, is that then the case is all over.

If it reverses and says the trial judge was wrong in his understanding of the law, the case would go back?

Robert L. Eberhardt:

The case will go back, in the Commonwealth’s view, either way because the remaining charges on which demurrers were denied are still before the court.

Byron R. White:

It seems to me that–

Robert L. Eberhardt:

Misdemeanor charges.

Byron R. White:

–Part of your arguments is that the issue of the… the double jeopardy issue, just isn’t right for review here?

Robert L. Eberhardt:

That’s been raised by both our response to the certiorari petition by the Solicitor General’s amicus brief and–

Byron R. White:

Because if you lose in the Superior Court on remand, where you have argued that the judge misunderstood the legal requirements of the crimes?

Robert L. Eberhardt:

–Right.

Byron R. White:

The the question would, even under your view, be right, was the… is a retrial… can the trial go back for a continuation because… In spite of the trial judge’s ruling on the sufficiency of the evidence?

Robert L. Eberhardt:

Correct.

Byron R. White:

Because you agree the trial judge ruled on the sufficiency of the evidence?

Robert L. Eberhardt:

I agree that the trial judge determined the legal sufficiency of the evidence.

He did not engage in–

Byron R. White:

If he understood the crime correctly, then he did rule on the sufficiency of the evidence?

Robert L. Eberhardt:

–Yes, he did.

So that, the Superior Court would be presented with the question of whether the court, the trial court, properly ruled on the–

Byron R. White:

Well, would you say that if you lose in the Superior Court, would you argue that the trial may continue despite the fact that then it will be clear that the trial judge, A, understood the elements of the crime and, B, ruled that the evidence was insufficient?

Robert L. Eberhardt:

–I would argue that the matter would be remanded to the trial court for continuation of trial with regard to those remaining–

Byron R. White:

You would say it could go forward despite the Double Jeopardy Clause?

Robert L. Eberhardt:

–I would say, go forward on those charges which were not disposed of my demurrers, because there were two charges–

Byron R. White:

What about the charges that were not disposed of by demurrer… that were disposed of by demurrer?

Robert L. Eberhardt:

–The Superior Court decision would be a final decision, much like Burks recognized that there would be a final order.

Byron R. White:

So, the State concedes that if a trial judge properly understood the elements of the crime in this case, his ruling was an acquittal to the extent that he sustained the demurrer?

Robert L. Eberhardt:

Correct, but it’s a legal question only as to–

Byron R. White:

So, the State… the double jeopardy clause would forbid the continuation of the trial on those issues?

Robert L. Eberhardt:

–I do not believe in this case that the Court ned go any further in determining whether an acquittal was actually entered in the case.

What we are suggesting is that the determination by the Superior Court on our appeal will be determinative of the legal question which we had a right to appeal, and therefore our right to appeal would have been vindicated in the Superior Court, and if we lose in that matter, then the order of the trial court achieves finality and prevents, under the Double Jeopardy Clause, us from arguing that the court should continue on those charges on which a demurrer has been sustained.

Byron R. White:

So, what you’re saying is that the Supreme Court of Pennsylvania just told the Superior Court that it misunderstood what the State’s appeal was about?

Robert L. Eberhardt:

In essence, yes, in essence.

John Paul Stevens:

May I ask one question.

You say the misdemeanor charges remain undisposed of, but that the charges on the unrelated arson went forward and the man was convicted.

Why would they go forward with some charges and not others that were not covered by the demurrer that was sustained?

I don’t understand.

Robert L. Eberhardt:

Well, I believe that the trial court was desirous of allowing the Commonwealth its right of appeal on those charges that he had sustained a demurrer to.

John Paul Stevens:

Right.

Robert L. Eberhardt:

And yet, the other charges which were easily severable because they were a separate criminal episode–

John Paul Stevens:

Well, even if they… the misdemeanor charges were not covered by the demurrer either, though, were they?

Robert L. Eberhardt:

–No demurrer was sustained as to them.

All I can suggest to the Court in that regard is that the trial court and the counsel below were concerned with the potential creation or another Double Jeopardy issue, when and if the trial court would proceed on other offenses which might be viewed as lesser included offenses or offenses for which there might be an additional bar that might be argued.

John Paul Stevens:

I see, but if they are lesser included offenses, then if your opponent wins on the demurrer, those would as well… at least arguably would also be barred?

Robert L. Eberhardt:

Possibly.

I don’t believe they are lesser included offenses.

I think that was a misunderstanding in the court below, that they may… at the time of this proceedings there was some question in Pennsylvania whether involuntary manslaughter was a lesser included offense of murder.

Subsequent decisions have established that it clearly is not.

John Paul Stevens:

But your position, as I understand it, on the charges that were covered by the demurrer, is that, we don’t yet know if that was an acquittal.

If the trial judge turns out to be right it was an acquittal.

If he’s wrong it’s not an acquittal.

Robert L. Eberhardt:

That’s basically our position, Your Honor.

Byron R. White:

I take it your position is that in a trial… short of a jury, for that matter, you get into… the prosecution gets into an argument with the judge on what the elements of the crime are, and the trial judge says,

“I disagree with you, Mr. Prosecutor. “

“You have to prove A, B and C.. “

And at the close of your case or the whole case he says,

“The evidence is insufficient because you didn’t prove C. “

acquittal.

Now, you say that the State may appeal that acquittal because the judge misunderstood the law?

Robert L. Eberhardt:

Well, my position is, it’s not an acquittal.

To the extent that Martin Linen Supply–

Byron R. White:

My example is not an acquittal.

Robert L. Eberhardt:

–Well, I would make a distinction, Your Honor, between the motion that’s made here, a demurrer, prior to… at the conclusion of the Commonwealth’s presentation of its evidence, and a motion that’s made at the conclusion of the presentation of all of the evidence.

Now, in a non-jury situation I suggest that it may be difficult to separate at that point the distinction between the Court ruling as a matter of law and ruling as a matter of fact.

It’s not necessary for the Court in this case to reach that far.

I think what we have here is a midtrial ruling before all of the evidence has been completed.

Thank you, Mr. Chief Justice.

Warren E. Burger:

Mr. Frey.

Mr. Andrew L. Frey:

Thank you, Mr. Chief Justice, and may it please the Court:

First of all, the issue that is before the Court today concerns only the ability of the courts to correct legally erroneous judgments of evidentiary insufficiency by the trial court.

If the judgment is not legally wrong, that is, if the trial court was correct in finding the evidence insufficient, the appellate court will affirm, there will be no further trial type proceedings of the kind to which the Double Jeopardy Clause could apply.

So, your decision on this case will affect only the class of cases in which the defendant has induced the trial court to make a legally erroneous decision.

John Paul Stevens:

Well, that’s not true, is it?

Say, the decision is right but the prosecutor doesn’t think it’s right, therefore appeals–

Mr. Andrew L. Frey:

We’ll take an appeal but there’s nothing–

John Paul Stevens:

–so that the defendant at least has the burden of resisting an appeal that he would not otherwise have to resist?

Mr. Andrew L. Frey:

–That is true, but I think this Court’s jurisprudence makes it quite clear that nothing in the Double Jeopardy Clause makes the appeal itself, the burden of the appeal itself, prohibited and Wilson dealt with and disposed of that problem.

Byron R. White:

Mr. Frey, I still don’t understand what you mean, “legally insufficient”, or “legal sufficiency”.

What do you mean?

Mr. Andrew L. Frey:

Well, the question is, what… well, I think the trial court in a jury trial, for instance, can rule only on a question of law.

Byron R. White:

Now, he says to himself, could any reasonable set of jurors find this evidence sufficient to find guilt beyond a reasonable doubt?

Byron R. White:

Is that the kind of question you’re talking about?

Mr. Andrew L. Frey:

Yes.

It’s a legal determination.

Byron R. White:

Do you think that his saying that at midtrial doesn’t bar an appeal?

Mr. Andrew L. Frey:

That is our position.

Thurgood Marshall:

What happened if at the end of exactly what he said in this case, he said,

“And I find him not guilty of any charge? “

Mr. Andrew L. Frey:

Well, exactly… I think there is a legitimate question in this case as to whether what the judge said was an acquittal or not in the true sense, and I’d like to talk for a minute if I may about what constitutes–

Thurgood Marshall:

When you don’t agree, that it just would be extra words?

He would have to have said something in front, before that.

Mr. Andrew L. Frey:

–I think if the Judge… I think what we are saying, it’s not reviewable as to verdict of acquittal.

That is a determination by the finder of fact that the defendant is not in fact guilty of the crime.

Thurgood Marshall:

That’s not what I–

Mr. Andrew L. Frey:

Or not reviewable, whether it’s right or wrong, okay.

Now, the judge, however, performs a different function and in this case he did not purport to act and the Pennsylvania court did not treat him as acting as finder of fact when he granted the demurrer, but acting the same way he would if there had been a jury, and taking the case a way from the jury.

Now, there is a sense in which it is an acquittal.

That is, in Scott we were talking about pre-indictment delay claim, and the majority held that you could distinguish between that kind of claim which does not go at all, does not represent at all a finding of guilt or innocence, and the kind of claim that could represent an acquittal.

Sandra Day O’Connor:

–Mr. Frey, it seems to me that your argument goes beyond that, what the State of Pennsylvania… it seemed to me the State of Pennsylvania was conceding that if the trial court had applied the correct standard in determining the evidence was insufficient, that that would constitute an acquittal for purposes of Double Jeopardy.

And yet, you, I think, are arguing a broader rule, that any finding of insufficient evidence just falls outside Double Jeopardy?

Mr. Andrew L. Frey:

That’s why I wanted to talk about the different ways in which there could be findings of insufficient evidence.

Justice White referred to one way, but before we get to that way, the judge might have a correct understanding of the elements of the offense, but the judge might decide that you can’t convict the defendant on the basis of circumstantial evidence, for instance.

Therefore, even though there was overwhelming circumstantial evidence of guilt, as to every element of the offense, the judge might enter an acquittal.

That would be one kind of ruling.

Now, that doesn’t involve a misunderstanding of the offense that is in a sense an acquittal.

I think we would argue that it should be reviewable.

But, Justice White’s example was a different kind.

The judge may add to the offense an element which is not in fact or in law a part of that offense.

William H. Rehnquist:

Let’s get back just a minute, Mr. Frey, to your example about circumstantial evidence.

You say that could be reviewable.

Could it be reviewed by the Pennsylvania Superior Court, in this case, because the Pennsylvania rule was that you could convict on circumstantial evidence?

William H. Rehnquist:

Could it be reviewed by the Pennsylvania Superior Court saying, this was enough circumstantial evidence to go to the jury?

Mr. Andrew L. Frey:

I think ultimately we would contend that either one of those conclusions would be reviewable.

We think they are conclusions of law.

Sandra Day O’Connor:

Do you think that’s the same thing that the attorney for the State of Pennsylvania is arguing?

Mr. Andrew L. Frey:

I’m not sure it is the same thing as they are arguing, but I think the important question is whether… I mean, I think there is an initial question that the Court has to grapple with, and that is, if this animal that we have is a determination by the judge that the defendant hasn’t committed a crime, then can it ever be appealed and corrected, regardless of what is wrong as a legal matter with that determination.

Because, there are suggestions, I think in Martin Linen and some suggestions in Scott that it couldn’t be, and we are asking the Court to reconsider that question in terms of the policies of the Double Jeopardy Clause.

We think that allowing an appeal in a situation where the defendant has induced the court to commit a legal error, has terminated the trial prior to a verdict by the fact finder to correct that error, has none of the… involves no semblance of the kind of oppressive practices that the Double Jeopardy Clause–

Byron R. White:

I don’t understand Pennsylvania to be asking us to reconsider any of our prior cases.

The United States seems to be.

Mr. Andrew L. Frey:

–Well, I think our reading of Martin Linen is that you would have to, because in our view–

Byron R. White:

How about Scott?

Mr. Andrew L. Frey:

–There’s no problem with the holding in Scott, and indeed no problem… indeed, we suggest that the analysis of Scott, there is some language that’s troublesome but the analysis of Scott is in fact quite inconsistent with–

Byron R. White:

Martin Linen is right in your teeth, I think?

Mr. Andrew L. Frey:

–That is our feeling, that’s right.

But, I think that Scott has undermined Martin Linen and I think it’s appropriate for the Court to reconsider Martin Linen after Scott, and I’d like to talk about the Double Jeopardy policies that might be considered to justify what seems a quite arbitrary result that denies justice to the prosecution, which is to leave legally erroneous decisions, concededly legally erroneous because those are the only ones we are talking about, beyond review and correction.

One policy is the finality of judgment, that is, not allowing the prosecution to improve its case when it has failed to persuade the first fact finder that has heard the case.

That would be true where you have a verdict of acquittal.

It’s not true in this case because there has been no failure to persuade the fact finder in a case where the judge takes the case away from the jury, of guilt.

Certainly there is the right to have the trial completed before the first tribunal that is empaneled, and that is the right that was considered and evaluated in Scott, and obviously the point here is that there would be no second trial necessary, no appearance before a second tribunal, if the defendant had not chosen to terminate the trial before verdict.

The defendant who wants only one trial can allow the first trial to go to verdict, make his or her motions after verdict, get a judgment of acquittal at that point from the judge.

It can then be appealed and either affirmed or reversed without the necessity for a second trial.

William H. Rehnquist:

Can you make a motion for judgment n.o.b. under the Federal Rules if you haven’t made a Rule 29 motion at the close of the evidence of the Government?

Mr. Andrew L. Frey:

I am not sure what the answer–

William H. Rehnquist:

Because otherwise, the statement you just made may not be correct.

If you have to make a Rule 29 Motion in order to preserve your rights for Post-Verdict Motion–

Mr. Andrew L. Frey:

–That would create a problem.

Sandra Day O’Connor:

–And aren’t there some states that have such a rule?

Mr. Andrew L. Frey:

There may be, but I don’t understand… that would be a non-constitutional rule, and it could presumably be corrected and if that were the obstacle, remove the constitutional problem here.

It’s not a rule that makes a lot of sense to me, but there may be some states that have it.

Now, in Justice Brennan’s dissent in Scott, he spoke of the burdens of retrial, the emotional strain, the expense, the risk of an erroneous conviction, the wearing down, and all these problems.

Mr. Andrew L. Frey:

These are very real problems, but you cannot distinguish this kind of case from a case in which there is a hung jury and a retrial with all those burdens, or a case in which a conviction is reversed and there is a retrial with all those burdens.

In fact, if you think about it for a moment, when there is legal error injected by the prosecution or the Court over the objection of the defense that paints a verdict of guilty, the law is clear that that can be reversed and there can be a new trial.

John Paul Stevens:

Mr. Frey, how do you distinguish a case in which a defendant objects to a whole category of evidence, he urges the court to keep it out and the judge erroneously excludes all the evidence, and then the jury returns a verdict of not guilty.

It’s based on legal error and it’s the defendant’s fault for having made what turns out to be an improper motion.

Mr. Andrew L. Frey:

Well, there are two pieces to that.

If the jury returns a verdict of not guilty, we are not arguing that that can be further reviewed, no matter what.

John Paul Stevens:

Why not?

What’s the difference?

Still, why wouldn’t the defendant have waived his right by making a motion that caused the Court to–

Mr. Andrew L. Frey:

Well, I think an argument could be made, and we have a footnote–

John Paul Stevens:

–It seems to me its a logical extension of the argument you are making.

Mr. Andrew L. Frey:

–Certainly, Justice Cardozo in Palco against Connecticut thought that would be a better system, but at least there we don’t know what the jury has done.

The prosecution has failed to convince the first fact finder, and the considerations that are identified in Green do apply.

In this situation, none of those considerations have any application.

Now, I should say a word in connection with your question about Sanabria, because Sanabria is a case where essentially that happened, that is, the evidence was suppressed.

What was left was insufficient.

The judge granted an acquittal.

We have no problem with the correctness of Sanabria, because we couldn’t appeal the evidentiary suppression rule.

Because that was so, when the judge granted an acquittal, there was no evidence.

Warren E. Burger:

I think you have responded to the questions, Mr. Frey.

Your time is up.

Do you have anything further?

Norma Chase:

I have nothing further.

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.