By The Associated Press

Published: Tuesday, November 6, 2012, 7:46 p.m.
Updated: Tuesday, November 6, 2012

WASHINGTON — The Supreme Court appeared inclined on Tuesday to rule that a criminal defendant cannot be tried again since a judge acquitted him midway through a trial, even if the judge based 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 Evans was charged.

Michigan appellate courts said Evans could be retried.

The Fifth Amendment to the Constitution prohibits people from being tried twice for the same offense. The Michigan courts said the amendment's Double Jeopardy Clause did not apply to 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 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,” 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?” Scalia said. “That's what the adversary system consists of.”

What little apparent support Michigan had on the court came from Chief Justice John Roberts, 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,” Roberts said.

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