Where you live should not affect ‘due process’ rights in court

Where you live should not affect ‘due process’ rights in court
© Courtesy Pacific Legal Foundation

Thanks to TV crime dramas, Americans are well-acquainted with one of our justice system’s most important features: the burden of proof. In criminal prosecutions, the government bears the burden of proof, not the defendant. Defendants are entitled to a presumption of innocence.

This means the government must prove the facts establishing guilt beyond a reasonable doubt. If that burden is not met, the defendant need not present a case or say anything at all.


And so, after the government’s presentation of evidence or at the end of a trial, if a defendant thinks the government’s burden of proof has not been met, he can move for acquittal. If the judge denies this motion, that denial can be reviewed on appeal.

Or at least that’s how the process is supposed to work.

This issue is one of three addressed by a recent petition for certiorari filed at the U.S. Supreme Court by Pacific Legal Foundation on behalf of Joe Robertson of Basin, Montana. A U.S. Navy veteran, Robertson was charged by the U.S. government in 2015 with two counts of violating the Clean Water Act, one of the most ill-defined federal statutes in operation.

What was Robertson’s alleged violation? He dug several water supply ponds for fire prevention near an unnamed foot-wide channel more than 40 miles from the closest actual navigable water.

Robertson’s trial lasted four days. Based on the seeming insufficiency of the evidence entered against him, he moved for a judgment of acquittal, both during the trial and after the case was submitted to the jury. When the jury failed to return a verdict (a “hung” jury), and the judge declared a mistrial, Robertson again asked for a judgment of acquittal. This motion was denied and the case set for retrial.

This enabled the government to significantly bolster its case and Robertson was convicted in his second trial. He was sentenced to 18 months in prison and ordered to pay the government over $100,000 in restitution. Robertson appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit, arguing in part that the trial court should have granted his motions for judgment of acquittal in the first trial.

But in an apparent split between the federal circuits, the Ninth Circuit held that Robertson doesn’t have the legal right to challenge the sufficiency of the evidence presented in his first trial after his ultimate conviction. This conclusion was based on the application of a little-known Supreme Court case from 1984, Richardson v. United States.

In that case, the Supreme Court addressed whether criminal defendants can seek review of orders denying judgments of acquittal following a mistrial to prevent their retrial, based on double jeopardy. Double jeopardy is a legal right protected by the Fifth Amendment that prevents someone from being tried twice for the same alleged crime. The court’s answer was no. But the justices did not address whether a ruling on a motion for acquittal based on insufficient evidence is, like any other interlocutory ruling, reviewable following final judgment after retrial.

The Ninth Circuit’s application of the Richardson decision to this issue, like the three other circuits it joined, conflates a challenge to a sufficiency ruling with a double-jeopardy claim and doesn’t comport with the common understanding of the reviewability of rulings on motions during trials after a final judgment. The purpose of the “final judgment rule” is not to preclude review of interlocutory rulings altogether, but to combine in one review all stages of the prior proceeding.

The Ninth Circuit’s ruling denying Robertson review of this issue also conflicts with the Eleventh Circuit’s take on the issue. Unlike in the First, Fifth, Tenth and now Ninth Circuits, in the Eleventh Circuit you are allowed to challenge the sufficiency of evidence presented in your first trial after final judgment in a second trial.

Americans’ due process rights should not depend on which federal circuit they happen to live in. Moreover, this issue often arises in both the lower federal and state courts. Currently, individuals within the federal jurisdictions misapplying the Richardson ruling are left worse off after a retrial and conviction than if they had been found guilty at their first trial, after which they have the opportunity to challenge the sufficiency of the government’s case. In the Ninth Circuit, if a jury is unable to reach a verdict and there is a retrial, any ruling on sufficiency motions are unreviewable. Period.

This result is patently unjust.

The Supreme Court should grant certiorari to resolve this express circuit split on a recurring and important issue to the administration of justice in the United States.

Timothy Snowball is an attorney for Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.