In Evans v. Michigan, the Supreme Court in an 8-1 decision by Justice Sotomayor says that Evans is (J. Alito dissented) – a lucky boy.
When the State of Michigan rested its case at petitioner Lamar Evans’ arson trial, the court entered a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence of a particular element of the offense. It turns out that the unproven “element” was not actually a required element at all. We must decide whether an erroneous acquittal such as this nevertheless constitutes an acquittal for double jeopardy purposes, which would mean that Evans could not be retried. This Court has previously held that a judicial acquittal premised upon a “misconstruction” of a criminal statute is an “acquittal on the merits … [that] bars retrial.” Arizona v. Rumsey, 467 U.S. 203 , 211 (1984). Seeing no meaningful constitutional distinction between a trial court’s “misconstruction” of a statute and its erroneous addition of a statutory element, we hold that a midtrial acquittal in these circumstances is an acquittal for double jeopardy purposes as well.
Keep those R.C.M. 917 and Griffiths motions coming. I have mentioned before my standard motion after the members find the accused guilty, but where there’s indication the judge would have granted a R.C.M. 917 but for the extremely low and deferential standard.