Double Jeopardy in Illinois Criminal Cases

Illinois Supreme Court Decision Overturned in Double Jeopardy Case

The United States Supreme Court ruled unanimously this month that the Illinois Supreme Court “manifestly erred” when it ordered the retrial of a criminal defendant on charges of aggravated battery and mob action. The retrial, the Court found, would have violated the defendant’s right to be free from double jeopardy.

The rule against double jeopardy is one of the cornerstones of criminal defense. The United States and Illinois Constitutions both provide criminal defendants explicit protection against double jeopardy.

Section 10 of the Illinois Constitution states that “No person shall be . . .twice put in jeopardy for the same offense.” This means that once a criminal defendant has been acquitted (found not guilty) of a crime, he cannot be retried – even if evidence is later uncovered that affirms his guilt.

In Crist v. Bretz,the U.S. Supreme Court ruled that “jeopardy attaches when the jury is empaneled and sworn.” Because U.S. Supreme Court decisions regarding constitutional issues also apply to state laws, this rule applies to Illinois criminal cases,

It is a very clear rule that the Supreme Court has consistently applied time and again. Yet in Martinez, both the Illinois Appellate and Supreme Courts failed to get it right.

Martinez v. Illinois

In 2006, the defendant was arrested and charged with aggravated battery and mob action against two victims. After numerous continuances by the prosecution to try and locate the victims, who were the main witnesses, and delays due to Martinez and his defense attorney, the trial was eventually scheduled to begin in May 2010 (Martinez obviously waived his constitutional right to a speedy trial).

On the day of trial, the victims still could not be located. The trial judge refused to grant any more continuances, but offered to postpone the starting time of the trial to later in the day, and to issue subpoenas for their arrest. The prosecution denied both offers and indicated that it would not participate in the case. The jury was sworn in, and the prosecution refused to give opening statements or call any witnesses. The trial judge then granted the defendant’s motion for a directed finding of not guilty, which means the defense attorney requested that the defendant be acquitted since the prosecution, in failing to put on any evidence, had no case against him.

The prosecution appealed, and the defendant argued that double jeopardy applied. His argument was rejected by both the Illinois Appellate and Supreme Courts, who ruled that because the state had put on no evidence, he was in no real danger of ever being found guilty during the first trial.

Martinez then appealed to the U.S. Supreme Court, which overturned the Illinois Supreme Court’s ruling based on his petition alone. The rule stated above – that double jeopardy attaches the moment the jury is sworn in – is so clear, the Court had no desire to hear oral arguments on the issue.

Double jeopardy does not apply in all cases. The defendant may be retried if there is a mistrial, or if the prosecution seeks a dismissal. In fact, the U.S. Supreme Court noted that in this case, the trial judge offered to dismiss the case, which would have allowed the prosecution to retry Martinez if the victims could be located. The prosecutor failed to take the court up on this offer.


Experienced Chicago Criminal Defense Attorney


If you have been arrested and charged with a criminal offense in Chicago or the surrounding suburbs, you need an experienced criminal defense attorney in your corner. Criminal defense work is governed by a number of rules of procedure and rules of evidence that the prosecution must follow. David L. Freidberg has 18 years of experience handling criminal defense work and not only understands these rules, but knows how to use them to your advantage. Call us at 312-560-7100 or contact our office today for a free consultation. We are available 24/7 for you convenience.

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