The month of November did not start out well for Howard K. Stern. (To be clear, we're talking about this Howard Stern -- i.e., the "Anna Nicole Smith" one -- not the "King of All Media" Howard Stern.)
Mr. Stern was convicted at trial of conspiracy to obtain prescription drugs for Ms. Smith (a.k.a., Ms. Vicki Lynn Marshall) under a variety of false names. But the trial judge granted a new trial, and the Court of Appeal held that although the jury's verdict might perhaps be reinstated, the Double Jeopardy Clause barred a new trial.
The California Supreme Court reversed and remanded, unanimously holding that a new trial was permissible.
Among other things, today's opinion shows just how troubling Supreme Court dicta can be. The Court of Appeal's decision relied upon an express statement from the California Supreme Court in which that tribunal said that once a trial court finds the evidence to be insufficient, no new trial is permissible. That statement is indeed dispositive here. But as the Court explains, it's also wrong. Such a holding is conclusive for Double Jeopardy purposes if made before the jury returns its verdict. But not if made after the jury finds the defendant guilty.
The Court of Appeal felt constrained by the California Supreme Court's express statement. Whereas the latter didn't feel similarly constrained in the slightest.