Did the Martinez Sum Rev Apply or Change the Law?

Last week, the Supreme Court issued an unusual pro-criminal defendant summary reversal in the Double Jeopardy case Martinez v. Illinois. According to the Court, summary treatment was appropriate in part because the Illinois courts had failed to adhere to "what we have consistently treated as a bright-line rule." Ironically, however, Martinez's main long-term effect may be to increase uncertainty as to whether the rule in question is actually that bright after all. Martinez is an illustration of the marginal legal changes that often accompany what appear or purport to be simple applications of law.

The Court usually issues merits decisions only as to important legal issues, and only after plenary briefing and argument. But the Court sometimes issues summary reversals or "sum rev's" in order to correct blatant errors identified in cert-stage papers. Sum revs thus shepherd the law by singling out extreme outlier courts and bringing them back into the fold. But sum rev's have also been criticized, including for being skewed toward certain favored claims (like state-on-top habeas cases) and for including insufficiently thought-out statements of law, resulting from the lack of full briefing, argument, and deliberation.

Martinez involved a long-delayed criminal case in Illinois where the government repeatedly obtained postponements on account of two absent witnesses. The trial court finally decided that enough was enough and put the government to a choice: either dismiss the charges against the defendant or empanel a jury and commence trial. The government declined to request dismissal, but later stated that it would not “participate” in the case. The trial court answered: “We’ll see how that works.” The way it worked was that the government presented no witnesses, the defendant moved for judgment in his favor, and the court complied.

The government appealed, arguing that it should have gotten yet another postponement. The government then offered a pair of cute theories to overcome the Double Jeopardy Clause. Though the jury had been sworn, the government argued that the defendant was never actually in jeopardy, since the government had said it wouldn’t “participate” in the trial. The government further argued that the trial judge had issued only a dismissal, without entering a verdict for the defendant. The government’s theories prevailed in the Illinois courts.

The Supreme Court viewed Martinez as raising two related questions. First, was the defendant ever in jeopardy? Second, did the proceedings end in a way that prohibited retrial? The Court claimed that both questions were “clearly” controled by precedent. But in resolving the case, the Court may actually have made the law marginally less clear.

On the first question, the Court applied what it repeatedly called a “bright-line rule” – namely, that a “jury trial begins, and jeopardy attaches, when the jury is sworn.” The Court said it had “never suggested” anything else. But almost as soon as it was stated, this rule became a little fuzzier. In a footnote to the Court’s assertion that the bright-line rule had never been qualified, the Court proceeded to qualify it, noting that “[s]ome commentators have suggested that there may be limited exceptions to this rule – e.g., where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption.” The Court also flagged cases “where the prosecutor had no opportunity to dismiss the charges to avoid the consequences of empaneling the jury.” “The scope of any such exceptions,” the Court noted, “is not presented here.”

On the second question, Martinez applied another supposedly settled rule – this time, that a functional finding of acquittal prohibits later trial. In the Court’s view, the trial court had made a decisive finding in the defendant’s favor. But, in another footnote, the Court went on to speculate that, “even if the trial court had chosen to dismiss the case or declare a mistrial rather than granting Martinez’s motion for a directed verdict, the Double Jeopardy Clause probably would still bar his retrial.” The Court based this “probably” correct statement on case law that had “confronted precisely this scenario" and resolved it in favor of the defendant. It is unclear why the Court would include this expressly uncertain dictum, even as it asserted that existing precedent “precisely” addressed the point at issue.

In light of its express reservations, Martinez marginally changed the law. Imagine any case “where the trial court lacks jurisdiction or where a defendant obtains an acquittal by fraud or corruption,” “where the prosecutor had no opportunity to dismiss the charges to avoid the consequences of empaneling the jury,” or where “the trial court had chosen to dismiss the case or declare a mistrial rather than granting [the defendant’s] motion for a directed verdict.” Before Martinez, the Court’s “bright-line” rules arguably dictated that the defendant ought to win under every one of those scenarios. Now, however, Martinez has made it a little easier to make a pro-government exception in each situation. These marginal changes in the law can have real consequences. For example, should a state court resolve any of the above scenarios against a defendant and the defendant later seek federal habeas relief, it may now be harder for the federal court to find a violation of clearly established Supreme Court precedent. This is the kind of indirect doctrinal effect that causes many critics to be wary of summary reversals.

Martinez is also an interesting study in precedential rules and exceptions. On the surface, Martinez held that the Illinois courts defied preexisting and unqualified rules, and that view presumably justified the Court’s decision to sum rev. But the Court’s reservations, particularly as to whether jeopardy attached, suggest that the real mistake of the Illinois courts wasn’t that they had made an exception to the Court’s rules, but rather that they had made a bad exception. In expressly reserving a range of situations where the relevant rules might not apply, the Court made clear that other, better exceptions might yet be made. But what makes one proposed exception better than any other? Martinez came closest to addressing this critical issue in its Part III, which argued (persuasively) that the Illinois courts' rule was "not necessary to avoid unfairness to prosecutors or to the public." That, too, was new analytical work that marginally changed the law.

As you can probably guess, I tend to think that Martinez shouldn’t have been resolved summarily. Part of the reason that sum rev's often seem skewed toward government interests is that summary treatment more readily makes sense in AEDPA, qualified immunity, and other cases where the Court’s express goal is simply to find legal ambiguity. But while Martinez purports to apply settled law, it actually changes the law in subtle ways while rejecting novel arguments for exceptions to governing rules. And, at over 10 pages, Martinez is comparable in length and complexity to a number of recent unanimous or near-unanimous decisions issued after full briefing and argument. Perhaps the Court should sometimes engage in “mere” error correction, including when (as in Martinez) a lower court has curtailed core rights for flimsy and troublesome reasons. But it’s probably better to avoid doing so summarily.

The above is cross-posted from Re's Judicata.