As I read the thing, I was very conflicted about this opinion, and remain a little bit so. But I must say that the panel did an extremely good job of anticipating the exact things that were going through my mind as I read it. I'm still not sure what the right answer is. But I nonetheless thing the panel did an outstanding job.
The question is whether John Woodward and be tried yet again for allegedly killing Laurie Houts. Her murder occurred over 30 years ago, in 1992. Woodward was already tried twice for that crime, both times shortly after the murder (e.g., within 4 years). The jury deadlocked both times, and understandably so, because the evidence against Woodward wasn't very strong at all. Ms. Houts was strangled by a rope in her car, and Mr. Woodward's fingerprints were found on the outside of the vehicle, and there were some fibers on the rope that were at least similar to a pair of sweatpants owned by him. But Woodward lived with Ms. Hout's boyfriend, there were no fingerprints on the inside of the car, and there wasn't really a very strong motive for the crime. Which I'm sure is why jurors in both trials were slightly leaning towards an acquittal; 8 to 4 in favor of acquittal the first time, and 7 to 5 in favor of acquittal the second time.
After the second acquittal, the trial judge dismissed the charges in the interests of justice, which is allowed under California law. The basic reason was simple: there just wasn't enough evidence to convict, which is what the trial judge said in the written (and oral) order. Given the evidence at trial, any future trial would likely come out the same way -- a deadlock (at best). So there was no point in trying him yet a third -- or fourth, or whatever -- time. Charges dismissed.
Seems reasonable.
Fast forward nearly two decades. Now there's new DNA technology, and they allegedly find some of Mr. Woodward's DNA on the rope. Exact match. So the Santa Clara District Attorney refiles.
The problem is the Double Jeopardy Clause. When a judge dismisses a charge based on insufficient evidence, that's jeopardy. You can't refile. And the judge here definitely did so; the minute order was replete with references to the evidence being insufficient.
So you could see why someone might be torn. On the one hand, it looks like Mr. Woodward might well have killed Ms. Houts, and you don't want someone to get away with cold-blooded murder. On the other hand, there are darn good reasons for the Double Jeopardy Clause, and there's no exception for "Oh, but we have much better evidence now." When you're acquitted, you can't be retried. Even if we know (or at least strongly suspect) that you did it and we could convict you if we were allowed to try you again.
Here's the rub, though. There's at least an argument that the trial judge wasn't "really" dismissing the charges for insufficient evidence. And when you read the minute order, you can see -- or at least I have an incredibly strong feeling about -- what the trial judge was really doing. The judge wasn't really saying that no rational juror could convict, which is the (true) standard for insufficient evidence. After all, 9 jurors did, in fact, vote to convict -- 4 the first time, and 5 the second time -- and it didn't really seem like the trial judge was saying those people were nutty.
Instead, to me, what the judge was really saying was that, based on the evidence and the results of the first two trials, there's no way that the result would be different. You weren't going to get a unanimous verdict that convicted the guy. So what's the point? Dismiss the charges.
Which makes sense. Indeed, it's exactly what I would have done, at the time, in the trial judge's shoes.
But (1) are we really sure that's what the trial judge meant, particularly given the number of times the minute order invokes the magic words "insufficient evidence," and (2) even if we are, what are the double jeopardy implications of that type of dismissal, which presumably doesn't happen every day?
Tough questions all around.
But Justice Danner has an answer, and as I read her opinion, she persuaded me that she's likely right (with the caveat that I haven't fully digested the underlying opinion yet). There's a California Supreme Court case called People v. Hatch that seems pretty darn similar to the current case, and that generally makes it somewhat difficult to hold that dismissals in the interests of justice (like this one) -- which are sometimes for insufficient evidence, and hence bar a retrial -- are in fact really for insufficient evidence rather than just amorphously "in the interests of justice" (and thus don't bar a retrial).
Justice Danner does a great job in that regard. There are differences, to be sure, but it does, in fact, seem like the present case is fairly similar to Hatch. So if a retrial wasn't barred in Hatch, then it's not barred here.
Fair enough.
But after reading roughly 30 or so pages of Justice Danner's opinion, the following idea popped into my head. "Okay, that's fine," my head said, "I get that the California Supreme Court apparently thinks that the Double Jeopardy Clause doesn't bar a retrial in these situations. But that's (among other things) a federal constitutional principle. There's always federal habeas later. I wonder if the federal courts are ultimately going to agree with this. Particularly the Ninth Circuit, which isn't exactly equivalent (even these days) to the California Supreme Court in 2000."
Because I could definitely see -- in fact I'm certain that -- particular Ninth Circuit panels would not view this case the same way that Justice Brown saw it in Hatch.
Shortly thereafter, one I was finished reading Justice Danner's opinion, boom, up comes Justice Lie's concurrence. In which she makes a similar point to the one that popped into my head, albeit from a slightly different perspective.
Justice Lie agrees that the case is similar to Hatch and says that, for that reason, she's bound to the result here. But she says -- and she's pretty persuasive on this point -- that federal double jeopardy law has definitely advanced since Hatch was decided in 2000, and in a manner not exactly favorable to Hatch. She says that, as a lower court, she's bound by the California Supreme Court's decision, so she concurs, but "respectfully urge[s] the California Supreme Court to reexamine the continuing vitality of Hatch’s narrow definition of an acquittal under federal double jeopardy principles."
Darn good point.
But that left me with one final thought.
It seems to me that neither Justices Danner nor Lie have fully articulated why they come out the way they do. (I'll add that Justice Bromberg joins Justice Danner's opinion -- my, what an incredibly smart panel, by the way.) For this reason:
Everyone agrees that the relevant double jeopardy rule is governed by federal, not state, law. (It's in the federal Constitution, after all.) Sure, the California Supreme Court said X in Hatch, and this case is very much like X, and as a general matter, lower state courts are bound to follow superior state tribunals.
But not when there's an intervening decision of an even higher court; in this case, the United States Supreme Court. Particularly on issues, as here, of federal law.
So, for Justice Danner, my question is why she doesn't dissent, rather than concur, if she thinks -- as she seems to -- that the intervening decisions of Evans and McElrath are inconsistent with Hatch. If that's the case (she says "But for our continuing duty to follow Hatch, I would instead conclude the section 1385 dismissal here is an acquittal that bars retrial under Evans and McElrath"), then the lower court has the right -- indeed, the duty -- to depart from state precedent and follow the intervening decision of the higher court. So why not dissent? (She further says that "Evans and McElrath 'erode the analytical foundations' of Hatch," which I think is darn similar to a recent analogous Ninth Circuit opinion that refused to follow existing Ninth Circuit precedent in light of an intervening Supreme Court decision that "undercut" that circuit precedent.)
My question for Justice Danner (and Justice Bromberg) is a similar one. Justice Danner's opinion doesn't even discuss the Supreme Court's intervening decision in Evans or Justice Lie's concurring argument that Evans is inconsistent with Hatch. That seems to me a huge problem, for the reasons identified above. Don't you have to explain why you think the state precedent is consistent with intervening higher court authority? Because otherwise, you've got to follow the latter? Yes, in most cases, it's sufficient to say "We're a lower court, or boss the California Supreme Court has decided X, and we've got X here, so that's what we're doing." But that's not sufficient when, as where, the boss of your boss (the United States Supreme Court) has said Y after your boss said X and Y is arguably -- as argued by your co-worker Justice Lie -- inconsistent with X.
So it seems to me that both sides have to address this point, albeit from slightly different perspectives. Justice Lie has to explain -- or at least it'd be helpful to explain -- why she follows Hatch instead of Evans if she truly thinks they're inconsistent, and Justice Danner has to explain (or at least it be helpful to explain) why she (probably) thinks Hatch and Evans are consistent.
Those are my thoughts for the day.
(Now I gotta get back to trying to figure out why Lufthansa just cancelled my flight to Budapest.)
