Tibbs v. Florida

Justice White,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, dissenting.

As our cases in this area indicate, the meaning of the Double Jeopardy Clause is not always readily apparent. See, e. g., Burks v. United States, 437 U. S. 1 (1978) (overruling Bryan v. United States, 338 U. S. 552 (1950), Sapir v. United States, 348 U. S. 373 (1955), and Forman v. United States, 361 U. S. 416 (1960)); United States v. Scott, 437 U. S. 82 (1978) (overruling United States v. Jenkins, 420 U. S. 358 (1975)). For this reason, we should begin with a clear understanding of what is at stake in this case.

To sustain the convictions in this case, the prosecution was required to convince the Florida Supreme Court not only that the evidence was sufficient under the federal constitutional standard announced in Jackson v. Virginia, 443 U. S. 307 (1979), but also that as a matter of state law, the verdict was not against the weight of the evidence. The Florida Supreme Court found the verdict to be against the weight of the evidence, thus holding that as a matter of state law the prosecution failed to present evidence adequate to sustain the convictions. Were the State to present this same evidence again, we must assume that once again the state courts would reverse any conviction that was based upon it.^* The State was not prevented from presenting its best case because of some incorrect procedural ruling by the trial court; rather, the State had a full opportunity to present its case, but that case was not adequate as a matter of state law. If the State presents no new evidence, the defendant has no new or additional burden to meet in successfully presenting a defense: He may stand on, i. e., repeat, what he has already presented. Thus, the only point of any second trial in this case is to allow the State to present additional evidence to bolster its case. If it does not have such evidence, reprosecution can serve no purpose other than harassment. The majority holds that reprosecution under these circumstances does not offend the double jeopardy provision of the Constitution. I do not agree.

The majority concedes, as it must under Burks, supra, that if the State’s evidence failed to meet the federal due process standard of evidentiary sufficiency, the Double Jeopardy Clause would bar reprosecution. The majority fails to explain why the State should be allowed another try where its proof has been held inadequate on state-law grounds, when it could not do so were it inadequate on federal-law grounds. In both cases the State has failed to present evidence adequate to sustain the conviction. The interests of the State in overcoming the evidentiary insufficiencies of its ease would seem to be exactly the same in the two cases; the interests of the defendant in avoiding a second trial would also seem to be exactly the same in each case. Yet the majority holds that the Double Jeopardy Clause leads to different results in the two instances.

The majority offers two arguments in its attempt to distinguish the two cases. First, it emphasizes that the Double Jeopardy Clause “attaches special weight to judgments of acquittal.” But in neither of the situations posited has there been a judgment of acquittal by the initial factfinder. In each instance, a reviewing court decides that, as a matter of law, the decision of the factfinder cannot stand. Second, the majority thinks it to be of some significance that when the evidence is determined to be insufficient as a matter of federal law, then no rational factfinder could have voted to convict on that basis. Or. the other hand, when the conviction is reversed on the basis of the state-law rule applying a “weight of the evidence” test, that “does not mean that acquittal was the only proper verdict.” Ante, at 42. The constraints of the Double Jeopardy Clause, however, do not depend upon a determination that an “acquittal was the only proper verdict.” The fact remains that the State failed to prove the defendant guilty in accordance with the evidentiary requirements of state law.

The majority opinion rests finally on a mischaracterization of the appellate court’s ruling: “The reversal simply affords the defendant a second opportunity to seek a favorable judgment.” Ante, at 43. But as I described above, it is not the defendant who has the burden of coming up with a new case on retrial; it is the prosecution. The defendant has already demonstrated that a conviction based on the State’s case, as so far developed, is “against the weight of the evidence.”

Having concluded that the majority opinion fails to justify the distinction it draws, I too turn to “the policies supporting the Double Jeopardy Clause,” ante, at 32, to determine whether this distinction is relevant. I do not believe it necessary to look beyond the articulation of those policies in the majority opinion itself to conclude that it is not:

“Burks and Greene [v. Massey, 437 U. S. 19 (1978)] implement the principle that ‘[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.’ This prohibition, lying at the core of the Clause’s protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Repeated prosecutorial sallies would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance.” Ante, at 41 (citations omitted).

These same policy considerations are at stake when a conviction is reversed on state-law grounds going to the adequacy of the evidence. The relevant question is whether the reversal is “‘due to a failure of proof at trial’ where the State received a ‘fair opportunity to offer whatever proof it could assemble.’” Hudson v. Louisiana, 450 U. S. 40, 43 (1981) (quoting Burks, 437 U. S., at 16). That the proof fails on state-law, rather than federal-law, grounds is immaterial to these policy considerations. Thus, the relevant distinction is between reversals based on evidentiary grounds and those based on procedural grounds: Only in the latter case can the State proceed to retrial without offending the deeply ingrained principle that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.” Green v. United States, 355 U. S. 184, 187 (1957).

It must also be noted that judges having doubts about the sufficiency of the evidence under the Jackson standard may prefer to reverse on the weight of the evidence, since retrial would not be barred. If done recurringly, this would undermine Jackson, Burks, and Greene. But under Burks and Greene, retrial is foreclosed by the Double Jeopardy Clause if the evidence fails to satisfy the Jackson standard. Hence, the Jackson issue cannot be avoided; if retrial is to be had, the evidence must be found to be legally sufficient, as a matter of federal law, to sustain the jury verdict. That finding must accompany any reversal based on the weight of the evidence if retrial is contemplated. The upshot may be that appellate judges will not be inclined to proclaim the evidence in a case to be legally sufficient, yet go on to disagree with the jury and the trial court by reversing on weight-of-the-evidence grounds. Indeed, in this case, the Florida Supreme Court declared that prospect to be an anomaly and a mistake and proclaimed that it would never again put itself in this position.

With all due respect, I dissent.

* Only Chief Justice Sundberg, concurring in part and dissenting in part, reached this issue below: “Since the same evidence must be used, an appellate court would have no choice but once again to reverse a conviction because of our reversal under identical circumstances.” 397 So. 2d 1120, 1130 (1981). Because the majority concluded that it would not in the future reverse convictions on grounds of evidentiary weight, it is not clear whether that court, were it presented with the exact same evidence in a Tibbs III, would follow its new rule and affirm or again reverse on “law of the case” grounds. I agree with the majority, however, that the peculiar procedural posture of this case does not affect our consideration of the issue because other jurisdictions, including the Federal Government, make use of a similar rule with respect to evidentiary weight.