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Supreme Court may bar certain retrials

In cases where judge acquits defendant during trial

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The Supreme Court appeared inclined Tuesday to rule that a criminal defendant cannot be tried again after a judge acquits him midway through a trial, even if the judge bases his decision on a legal error.

The justices seemed willing during argument at the high court to endorse the idea that a judge's decision to acquit a defendant is no different than a jury verdict in that both are final.

The issue arises in the case of a Michigan man accused of setting fire to a vacant house. The judge stopped the jury trial and acquitted defendant Lamar Evans based on a mistaken reading of the law under which Mr. Evans was charged.

Michigan appellate courts said Mr. Evans could be retried.

The Fifth Amendment to the Constitution prohibits protects people from being tried twice for the same offense. The Michigan courts said the amendment's double jeopardy clause did not apply to Mr. Evans because the judge's mistake means he was not truly acquitted.

But several justices said they were reluctant to adopt the Michigan courts' reasoning that Mr. Evans should not benefit from a legal windfall because of the judge's mistake. Justice Elena Kagan pointed out that when a judge makes mistakes in instructing jurors before they deliberate on a verdict, the government may not appeal if the defendant is found not guilty. "The same windfall is received by the defendant that gets an acquittal from an improperly instructed jury," Justice Kagan said.

Justice Antonin Scalia scoffed at the idea advanced by lawyers for Michigan and the Obama administration that courts should be willing to allow a new trial if the judge acquits a defendant at the urging of his lawyer. "Counsel often encourage judges to do the wrong thing. In fact, in every case, there is one of the two counsel urging the court to do the wrong thing, right?" Justice Scalia said. "That's what the adversary system consists of."

What little apparent support Michigan had on the court came from Chief Justice John G. Roberts Jr., who said the government is supposed to have a fair shot at convicting a defendant. "It does seem to me if they had been thrown out of court because of a legal error, that's not a fair shot," Chief Justice Roberts said.

A decision should come by June.

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