Lead
The trial court granted defendant’s motion to dismiss with prejudice charges of burning real and insured property following the second declaration of a mistrial because of jury inability to agree on a verdict. We granted leave to appeal to determine whether the trial court correctly inferred this remedy from the substantive Due Process Clause of the constitution. We hold that the due process guarantees of the Michigan and United States Constitutions, Const 1963, art 1, § 17, and US Const, Am XIV, do not create a right to preclude retrial of this defendant in these circumstances. We reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.
i
The defendant was charged and bound over on one count of burning real property, MCL 750.73; MSA 28.268, and one count of burning insured property, MCL 750.75; MSA 28.270, following a fire that damaged his business in Garden City hi June, 1990. Trial began in June, 1993, and a mistrial was declared after the jury was unable to reach a verdict. In February, 1994, a second trial was commenced against the defendant in which substantially the same evidence was offered. Again, the jury was unable to reach a verdict, and a mistrial was declared.
The defendant moved for dismissal of the charges. Acknowledging that the earlier mistrials had not been the result of procedural or substantive errors in the trial process, defendant contended that retrial after two hung juries would be so fundamentally unfair that it would violate the constitutional guarantee of due process. The trial court agreed and dismissed the charges with prejudice.
The Court of Appeals affirmed in a two-to-one decision.
n
On appeal, defendant argues only that the due process guarantees of the state and federal constitutions preclude a third trial on these charges.
The Fourteenth Amendment to the United States Constitution and Const 1963, art 1, § 17 guarantee that no state shall deprive any person of “life, liberty or property, without due process of law.”
in
The defendant relies on five cases in support of the contention that retrial would violate the substantive guarantees of due process: United States v Ingram,
Neither the cases cited nor our independent research supports the proposition that the protections of substantive due process require recognition of a remedy for the harm incident to one or more mistrials.
iv
The United States Supreme Court has declined to expand substantive due process as an independent source of limitation on government.
In Hurtado v California,
Although it is unclear at this stage whether the Court will ultimately conclude that substantive due process has been supplanted by specific provisions of the Bill of Rights, see Lewis v Sacramento Co,
In Collins v Harker Heights, supra, the Court again underscored its reluctance to expand the doctrine of substantive due process, explaining:
As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. lid. at 125.][16]
In Albright v Oliver, supra at 268-271, the Court similarly declined to recognize a substantive right of due process to be free from criminal prosecution except upon probable cause. Because the first step in alleging a constitutional violation is to identify the specific right infringed, the Court began by reiterating that substantive due process rights have for the most part accorded to “matters relating to marriage, family, procreation, and the right to bodily integrity.” Id. at 272. Although the lead opinion was signed by only a plurality of the justices, a majority of the Court joined in the rationale limiting the scope of substantive due process on the ground that
[w]here a particular amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process’ must be the guide for analyzing th[e] claims.” [Id. at 273, quoting Graham v Connor, supra at 395.][17]
V
The contention that the Court should infer a remedy precluding retrial because of “the anxiety, stress, humiliation, and cost to the defendant of continual reprosecution where no new evidence exists”
VI
The relationship between federal and state governments and that of the state judiciary to its coordinate branches are obviously different. The common concern is the reach and contours of assertion of the power to declare “arbitrary” the conduct of government actors. While the focus of this Court’s concern regarding expansive interpretation of our authority has been expressed in terms of separation of powers, rather than the powers reserved for the states under the Tenth Amendment, we have also cautiously responded to requests to recognize new remedies that would limit the authority of the executive or legislative branches of government. We declined the invitation to expand judicial authority in People v Mateo,
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
We hold that in dismissing this case in the circumstances here presented, the trial judge violated the doctrine of separation of powers.
The amorphous claim endorsed by the trial court and the Court of Appeals would inevitably call for courts to decide what policy of retrial is best for all the people of Michigan. In words equally appropriate to the relationship between the branches of state government and our citizens, Judge Easterbrooke has observed:
Which policy is best for the people ... is a complex question, answered different ways at different times in this nation (and in dramatically different ways by different nations today) — but it is a question about moral and efficient law enforcement for the people to debate and resolve. It is not a question whose only answer must be given by the judicial branch on the basis of “substantive due process.” [Mays v East St Louis,123 F3d 999 , 1003 (CA 7, 1997).]
Finally, absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor. Nor has the case been made that harm to an interest not addressed by specific provisions of the Bill of Rights requires a new remedy. Whatever the reach of substantive due process, this claim does not approach the threshold.
vn
For the reasons stated, we hold that the reprosecution of this defendant is not a violation of the due process guarantees of the Michigan and United States Constitutions, Const 1963, art 1, § 17, and US Const, Ana XIV. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings.
Notes
In the first trial, the jury voted either ten to two in favor of conviction or eight to four in favor of conviction. In the second trial, the jury was evenly divided, with six jurors voting in favor of conviction and six jurors voting in favor of acquittal. While the defendant submits that the juror votes are material to our result, we decline the invitation to decide the issue on this basis. Neither this Court nor any other court has obligated jurors to disclose their votes other than in the context of confirming that they agree with a verdict reported as unanimous. It follows that we have not recognized a right on behalf of either the prosecution or the defense to such information.
The trial court concluded that retrial would be fundamentally unfair because 1) two prior trials had resulted in jury deadlock, 2) the prosecutor had no new evidence to offer against the defendant, 3) the likelihood of a third hung jury was high because there was no new evidence against the defendant, and 4) retrial would be an inefficient use of judicial resources.
The dissenting judge agreed that due process guarantees may require dismissal of the charges against a defendant over the prosecutor’s objection under certain circumstances, but argued that this defendant’s right to due process would not be violated to such a degree that dismissal was justified. Id. at 136.
Defendant concedes that his rights under the Double Jeopardy Clause have not been violated by the repeated trials. See Richardson v United States,
The express language of the Fourteenth Amendment of the United States Constitution provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law ....
Const 1963, art 1, § 17 provides:
No person shall be . . . deprived of life, liberty or property, without due process of law.
For further recognition that the Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights, see United States v Salerno,
See Foucha v Louisiana,
Factors to be considered when determining whether a state constitutional provision affords protection different from its federal counterpart include “1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest.” Sitz, supra at 763, n 14.
In Ingram, supra, the court held that dismissal of an indictment after the defendant’s second mistrial was required in the “interests of justice” as “simply a matter of fair play.” Id. at 385-386. The Due Process Clause was not addressed by the court.
In Witt, supra, the Tennessee Supreme Court barred retrial of a defendant whose indictments for first-degree murder were dismissed after three juries failed to reach unanimous verdicts. After finding that the constitutional right to due process was not involved, the court relied on the trial courts’ “inherent authority” to terminate prosecutions in the exercise of “sound judicial discretion.” Id. at 917.
Likewise, in Moriwake, supra, the Due Process Clause was not addressed when the court concluded that judges have inherent power to dismiss an indictment with prejudice over the objection of the prosecution where two mistrials were declared because the respective juries were unable to reach verdicts. Id. at 56.
Lastly, in Abbati, supra, the court did address the Due Process Clause, but rested its decision on the trial court’s inherent right to dismiss an indictment with prejudice over the prosecutor’s objection.
In Thompson, the defendant’s third trial resulted in a conviction for felony murder after the defendant’s first conviction was reversed and a second trial ended in a mistrial. On appeal, the defendant argued that retrial after a mistrial violated the Double Jeopardy Clause of the Michigan Constitution, art 1, § 15 or the Due Process Clauses of the state and federal constitutions. We held that neither constitutional provision was violated, while observing that “there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by Const 1963, art 1, § 17, or the Fourteenth Amendment to the United States Constitution . . . .” Id. at 133.
See People v Cummings, 47 Ill App 3d 578, 581;
For an accounting of cases that have held that retrial after a properly declared mistrial did not violate substantive due process guarantees but would violate general principles of “fairness,” see Ingram, supra at 385 (making no reference to the Due
See Mapp v Ohio,
The Court held:
Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. [Graham, supra at 395.]
16 In Collins, the Court rejected the petitioner’s claim under 42 USC 1983 that municipal employees had a right under the Fourteenth Amendment Due Process Clause to be free from unreasonable risks of harm in the workplace. The Court noted its reluctance to expand the doctrine of substantive due process, stating that Congress intended the Due Process Clause to prevent the government from arbitrarily exercising its power, not to guarantee minimal levels of safety and security in the workplace. Id. at 126.
17 See Wells, Constitutional torts, common-law torts, and due process of law, 72 Chi-Kent L R 617, 643 (1997) (the Court in Graham, Albright, and Collins does not propose to abandon substantive due process, only to avoid it whenever possible).
To support his position defendant relies on Green v United States,
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is 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, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
The rationale of Green is inapposite because Green involved not a case of continuing jeopardy, as is involved here, but rather a case of double jeopardy. Moreover, the Supreme Court expressly recognized that jeopardy does not bar a second trial under circumstances where a jury has failed to reach a verdict, stating:
At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where “unforeseeable circumstances . . . arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict.”
See also United States v MacDonald,
“Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” . . . The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. . . . Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. [Id. at 8-9.]
We take judicial notice of the facts of People v Fisher,
Dissenting Opinion
(dissenting). The majority’s opinion today attempts to reach a conclusion that decides far more than the case before us. Instead of merely focusing on the task at hand, the majority seeks to effectively sound a death knell for the concept of substantive due process under Const 1963, art 1, § 17, and, for that matter, the Fourteenth Amendment of the United States Constitution, in the law of Michigan. Because I cannot agree with the majority’s result, or support its far-ranging dicta, I dissent.
i
In People v Thompson,
In this case, the trial court, relying on our guidance in Thompson, believed that such a case was before it, and dismissed the charges against the defendant following two successive trials that resulted in jury deadlock. The majority, rather than simply correcting the perceived error in the trial judge’s application of Thompson, instead beats a wholesale retreat from it, and effectively holds that, in fact, there can never be a case such as we contemplated in Thompson.
n
Defendant was the owner of a sports equipment store in Garden City. After about six months in business, he increased his insurance coverage on the contents of the store from $50,000 to $75,000. Two weeks later, on June 27, 1990, there was a fire at the store. Defendant left the store at approximately 4:15 P.M. to visit relatives out of town. The fire was reported at 7:15 P.M., and investigators determined it had been smoldering for a couple of hours. Defendant’s store suffered considerable damage, and adjacent businesses suffered smoke damage.
The investigation revealed no sign of illegal entry, and bum patterns of flammable liquid appeared on the floor in the area of the fire’s origin. At both trials, the defendant pointed out that charcoal grills and lighter fluid were stored in this area, and argued that the investigators had not adequately tested to rule out those items as the cause of the markings.
The defendant was charged with one count of burning of real property
The prosecution announced its intention to again retry the defendant. The defendant moved to dismiss, arguing the likelihood of yet another hung jury and that he would suffer substantial prejudice if retried again.
The motion was heard August 5, 1994, before Recorder’s Court Chief Judge Dalton A. Roberson.
The prosecutor appealed in the Court of Appeals, which affirmed in a published opinion.
m
While the majority quotes a collection of familiar authority regarding the common woes that befall a defendant who is charged with a crime under any circumstances, no mention is made of the peculiar facts of this case. The defendant was charged with the crime commonly referred to as arson. There was no direct evidence linking him to the fire, and the only indirect evidence that stood for the proposition that a crime had even been committed was the bum patterns on the floor, which indicated the presence of flammable liquids. The defendant came forward with evidence that flammable liquids were routinely stored in this area. This set the stage for a battle of expert witnesses in the field of fire cause and origin.
This case tinned entirely on expert testimony. If the jury believed the prosecution’s experts, a crime had occurred, and the defendant was the most logical suspect.
It is here I see a difference between this case and those authorities cited by the majority. It is without dispute that one who is charged with a crime will incur substantial attorney costs. Those who cannot afford an attorney are, of course, provided with assigned counsel. But while the appointment of necessary defense experts is required by statute,
IV
Likewise, the majority’s effort regarding the purported applicability of the Fifth Amendment’s guarantee against double jeopardy to exclude any due process protection strikes me as misguided. The protection provided in the guarantee against double jeopardy is twofold. “The Clause secures the defendant’s interests in (1) the finality of judgments, and (2) protection against multiple prosecutions.” People v Anderson,
While this case certainly involves multiple prosecutions, the application of the due process analysis is not to the multiple prosecutions per se, but to the underlying result — will the defendant receive a fair trial? In this case, I am convinced that while yet another trial or two may eventually result in the defendant’s conviction, there is far too great a likelihood that such a result will directly follow the defendant becoming financially unable to retain experts of sufficient qualifications and capabilities as to adequately advance his theory of the case. The end to the concept of trial by ordeal long predates the law of our state, and I find it to be fundamentally unfair to return to it here.
v
The majority, after misconstruing the underlying issue and attempting to insure that this Court never again faces another claim of a substantive due process in a criminal case, continues still further, finding a violation of the doctrine of separation of powers. It does so following a lengthy list of citations, but scant analysis.
Again, I find this unpersuasive. The majority believes that “absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor.” Ante at 533. While this Court has often made it clear that there are aspects of a prosecutor’s role where the judicial branch has no call to intervene,
Is the Court saying that, absent a specific violation of a specific constitutional provision, it has absolutely no right or duty to insure that a defendant receives a fair trial, or to prevent the prosecution from engaging in egregious conduct? It seems to me that, in actuality, our inherent constitutional authority to oversee the practice and procedure in our courts, Const 1963, art 6, § 5, must include some measure of requiring fairness in proceedings. I do not believe that, when one party is the prosecutor, the doctrine of separation of powers requires us to relinquish the inherent control we maintain over the conduct of litigants before our courts.
As we noted in Anderson, when only one of the interests protected by the Double Jeopardy Clause is implicated, we engage in a balancing of the defendant’s and the state’s interests. Id. at 483-484. Under the majority’s analysis, it would seem that, because there is not a complete violation of a specific constitutional provision, we could not do such a thing. I cringe at the volume and breadth of precedent potentially impinged by such an analysis, and take solace only in the fact that it is included in repetitive and cumulative dicta.
VI
The majority cites People v Dawson,
I would analyze this case in accordance with our past decisions, and, in this case, find that a third retrial would be so prejudicial to the defendant as to violate his right to due process on these particular, and unusual, facts. I find the remainder of the majority’s opinion to be both unnecessary and unpersuasive. I dissent.
I note that the author of Thompson is also the author of the majority opinion today. While the majority dismisses the quoted passage of Thompson as dicta, I should make two points. The first is that I argue not that this portion of Thompson is controlling, but rather, that prudence indicates that we take the same course as we did then, i.e., again, if this is not such a case, it still remains possible one might come before us.
Second, to the extent those in the majority would dismiss this language as merely ill-advised dicta, an assertion I disagree with, I note they still insist on attempting to stretch the instant opinion to cover a variety of situations not before the Court. To the extent one credits the majority’s disregard of nearly all the analysis included in part in of Thompson, to be at all consistent, one would have to seriously question the inclusion of at least parts IV through vi of the majority’s opinion, all of which are unnecessary to the decision today, as it is already controlled by the analysis in parts n and m of the majority’s opinion.
MCL 750.73; MSA 28.268.
MCL 750.75; MSA 28.270.
Id. at 136, McDonald, J. (concurring in part and dissenting in part).
Recall, however, that the defendant also presented an alibi defense.
MCL 775.15; MSA 28.1252.
See People v Jacobsen,
Thompson at 133, quoting Dodge v Detroit Trust Co,
I pause to take issue with my sister Boyle’s favorite (mis)quote of People v Milbourn,
See Genesee Co Prosecutor v Genesee Circuit Judge,
Before I depart from this section of the majority’s opinion, I note the context of the lengthy quotation from Mays v East St Louis,
I also question the presence of People v Fisher,