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Getting punked by a pro se defendant

While doing the Case Update this week, I ran across two cases from the 8th District that deserve a little more discussion.  I'll do one today, and the other tomorrow.

The first is State v. Martin, which was actually in its second iteration before the court.  The defendant had been indicted for conspiracy to commit aggravated murder and kidnapping.  At his first trial, he moved to dismiss the conspiracy count at the close of the state's case, on the grounds that it didn't specify the overt act that formed the basis of the conspiracy.  (And when I say "he," I mean "he"  -- he was representing himself.)  The prosecution requested an overnight recess "in order to respond in a more considered fashion," and the next day, dismissed the count. 

The defendant was convicted, but the court of appeals reversed because there hadn't been a valid waiver of counsel.  After conviction at the second trial on both the conspiracy and kidnapping counts, he appealed again, claiming that double jeopardy barred his retrial on the conspiracy count because that count had been dismissed at the first trial.

That's not as much of a no-brainer as it might appear.  As Judge McMonagle's thorough opinion indicates, jeopardy does not attach to a dismissal where it is (a) at the request of the defendant, and (b) is not related to guilt or innocence.  (Dismissal here is treated similarly to a mistrial.)  What's interesting is that if the state had not itself dismissed the count, but forced the trial court to rule on it, it might have brought itself within that rule.  Indeed, as the appellate court noted, the decision to dismiss was mystifying:  defects in an indictment have to be raised prior to trial, and the state could have opposed the motion on that basis alone.  The state could have even sought to amend the indictment at that point, since that wouldn't have changed the name or identity of the offense. 

In fact, the State's dismissal of the charges at the conclusion of its own case was really the only way that jeopardy was caused to attach. While this court cannot fathom what tactic might have been involved in the decision to dismiss,  nonetheless, this is what the State did. For us to establish a rule that would permit the State to dismiss a charge at the conclusion of its own case, and then later reindict upon that charge, when simple correction of the defect was then available by amendment, or when the defense had obviously waived objection thereto, would be to destroy any concept of double jeopardy. 

It's one thing to get your clock cleaned by a pro se defendant, another to clean your own clock.

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