United States v. Ball

Status

49 later cases cite United States v. Ball; 49 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.

Treatments

Limited

• The Navy-Marine Corps Court of Criminal Appeals declined to extend Ball's allowance of retrial after a defendant obtains reversal to a rehearing confined to a single element of the offense.

  United States v. Walker · United States Navy-Marine Corps Court of Criminal Appeals · filed January 31, 2012

  In this line of jurisprudence, where the accused prevailed on appeal after trial and conviction, the Government was authorized a retrial, but the retrials were fuller proceedings than the one we have here. See, e.g., DiFrancesco, 449 U.S. at 117, 101 S.Ct. 426; Burks, 437 U.S. at 1, 98 S.Ct. 2141; Jorn, 400 U.S. at 470, 91 S.Ct. 547; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Tateo, 377 U.S. at 463, 84 S.Ct. 1587; Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960) (overruled on other grounds); Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); and United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In each of these retrials, the Government presented evidence on every element of the recharged offense. In none of them, nor in any precedent we could find, was the Government permitted a retrial in which it could explain to the fact finder that all elements, save one, were to be resolved as a matter of law. But that is exactly what happened in this case. The CA followed the mandate we established in our 2008 opinion and held a limited rehearing on the element of premeditation. We are left, then, with a subsidiary question: does the policy that permits a retrial after an accused’s conviction has been set aside allow the Government the enormous advantage of concerning itself with only one discrete element at that retrial? In the absence of any precedent supporting such a policy extension, we conclude that it does not.4 The rehearing did not, therefore, fall within the exception to the Constitution’s general prohibition against retrial after conviction. We hold that the rehearing as to the charge of the premeditated murder of LCpl Page violated the appellant’s Fifth Amendment right to be protected from Double Jeopardy.

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Questioned

• The district court said Ball's retrial rule should be re-examined in light of later double jeopardy decisions, without deciding whether Ball had been displaced.

  United States v. Emler · United States District Court for the Eastern District of Michigan · filed November 24, 1976

  It is interesting that in Beard the court noted that its decision holding the indictment defective would leave the government free to rein-dict Beard because, under United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), reindictment would not involve double jeopardy considerations. More recent decisions have held that jeopardy attaches when a jury has been impaneled and sworn. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). While Bail has never been overruled by the Supreme Court, it has been severely criticized and must, it seems to us, be re-examined. See, e. g., 1 Antieau, Modem Constitutional Law 306 (1969) (finding it remarkable that a person can serve time in a penitentiary without ever having been placed in jeopardy). Thus, -we do not find it persuasive that the government would be free to reindict the defendant.

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