Reversal of Judge’s Acquittal of Defendant, When the Acquittal Was Entered Despite a Jury Verdict

In State ex rel. DeWine v. Burge (Ohio Sup. Ct. Jan. 27), a judge vacated defendants’ criminal convictions many years after they had been convicted by a jury:

In 1994, a jury convicted Nancy Smith and Joseph Allen of numerous sex offenses involving children enrolled in the Lorain Head Start Program. In the Lorain County Court of Common Pleas’s sentencing entries for Smith and Allen, the court noted that they had appeared in court for sentencing “after having been found guilty” of the various offenses. The sentencing entries did not specify the manner of the convictions–that Smith and Allen had been found guilty by a jury. Smith and Allen were both sentenced to lengthy prison terms. On appeal, the Court of Appeals for Lorain County affirmed the convictions and sentences.

In 2008, Smith filed a motion for reconsideration of her sentence. In 2009, Allen filed a motion for resentencing. The defendants claimed that their August 1994 sentencing entries did not comply with Crim.R. 32(C) and thus did not constitute final, appealable orders. Appellee, Lorain County Court of Common Pleas Judge James M. Burge, who succeeded the judge who had sentenced the defendants to prison, granted the motions and vacated the convictions and sentences. Judge Burge ruled that the court’s jurisdiction included “the preparation of a corrected sentencing entry or, in the court’s discretion, a resentencing.” On June 24, 2009, Judge Burge entered judgments of acquittal pursuant to Crim.R. 29(C) for both Smith and Allen, discharged them and ordered the Lorain County Sheriff’s Department to remove them from the
sex-offender registration and notification system.

Judge Burge’s judgment was apparently based on the view that “the evidence [was] insufficient to sustain a conviction of such offense or offenses” (since that’s what Rule 29 provides for). Judge generally may grant such verdicts even “after [a jury] returns a verdict of guilty,” though usually this happens immediately or very shortly after the jury verdict. But in this case, the Ohio Supreme Court held that Judge Burge lacked jurisdiction to enter such a verdict.

Reader Paul Kasman asks: Does this reversal of a judicial acquittal violate the Double Jeopardy Clause? After all, generally speaking acquittals cannot be reversed, and can’t even be appealed by the government. But here there would be no Double Jeopardy Clause violation, it turns out. United States v. Wilson (1975) holds (to quote a later case characterizing it), that “When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty.” Here’s the Supreme Court’s reasoning on the matter, from Wilson itself:

When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, “thereby 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.” …

By contrast, where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended…. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted without serious constitutional challenge to appeal from orders arresting judgment after a verdict has been entered against the defendant. Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.

Similarly, it is well settled that an appellate court’s order reversing a conviction is subject to further review even when the appellate court has ordered the indictment dismissed and the defendant discharged. If reversal by a court of appeals operated to deprive the Government of its right to seek further review, disposition in the court of appeals would be “tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court.”

It is difficult to see why the rule should be any different simply because the defendant has gotten a favorable postverdict ruling of law from the District Judge rather than from the Court of Appeals, or because the District Judge has relied to some degree on evidence presented at trial in making his ruling. Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.