No Venue, No Problem: SCOTUS
Unanimously Decides For Federal Government
By:
Brandon Shinder
First,
I would like to thank David Oscar Markus and John R. Byrne for the opportunity
to submit this guest post. This post will cover the Supreme
Court’s recent decision in Smith v. United States, which entails a legal
issue that was the subject of the 2023 Gibbons Criminal Procedure Moot Court
Competition, where my partner, Gaby Pinzon, and I represented the University of
Miami School of Law in winning First Place at the competition. I would also like to thank our incredible
coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout
the competition.
(L to R) Gaby Pinzon, Adam Stolz (coach), Brandon Shinder; not pictured: Luis Reyes (coach).
On
Thursday June 15, 2023, the Supreme Court decided Smith and reaffirmed that—even in 2023—there
are some things on which the Justices unanimously agree. In Smith, it
was that the proper remedy for a criminal trial in the incorrect venue is not
acquittal, but a retrial in the proper venue:
When
a conviction is reversed because of a trial error, this Court has long allowed
retrial in nearly all circumstances.
We consider in this case whether the Constitution requires a different outcome
when a conviction is reversed because the prosecution occurred in the wrong
venue and before a jury drawn from the wrong location. We hold that it does not.
The
Court’s holding in Smith is the first time the Court has addressed the
proper remedy for a violation of venue. Historically, when constitutional
rights are violated during the trial process, the Court has held that the
proper remedy is a retrial:
Therefore,
the appropriate remedy for prejudicial trial error, in almost all
circumstances, is simply the award of a retrial, not a judgment barring
reprosecution . . . [i]n all other circumstances, we have found
that retrial is the strongest appropriate remedy, and we have applied this rule to every other Clause of the Sixth Amendment [.]
However, the Court was careful to
say “in almost all circumstances” because the Court reaffirmed that violations
of the Speedy Trial Clause are categorically different from other Sixth
Amendment violations, and as such require the remedy of acquittal.
The
Court rejected all three of Petitioner’s arguments. First, Petitioner argued
that the Venue and Vicinage Clauses were incorporated into the Constitution to
limit hardships in trial; however, the additional hardship of a retrial was not
a reason to require acquittal, as the Court noted:
But
any criminal trial, whether or not in the right venue, imposes hardship, and
any retrial after a reversal for trial error adds to that initial harm … [and
that] the mere burden of a second trial has never justified an exemption from
the retrial rule . . . we have repeatedly rejected objections based on the
serious hardship in . . . prosecutions in places distant from the
[defendant’s] home.
Second,
Petitioner argued that the historical backdrop underlying the Clauses supports
the remedy of acquittal. Under English common law, however, venue violations
were remedied by retrial. Nevertheless,
Petitioner argued that the incorporation of the Venue and Vicinage Clauses into
the Constitution elevated the right to proper venue in American law more so
than in common law. The Court again disagreed:
[A]lthough
the Clauses depart in some respects from the common law—most notably by
providing new specifications about the place where a crime may be tried—there
is no meaningful evidence that the Constitution altered the remedy prescribed by
common law for violations of the vicinage right.
Lastly,
Petitioner argued that the Double Jeopardy Clause likewise supports the remedy
of acquittal. Petitioner argued that, when juries acquit for improper venue, “a
judicial ruling that venue was improper on a motion to acquit should have the
same result.” The Court rejected this argument and distinguished judicial
decisions from a jury’s general verdict:
[B]ecause it is impossible for a
court to be certain about the ground for the verdict without improperly delving
into the jurors’ deliberations, the jury holds an unreviewable power . . . to
return a verdict of not guilty even for impermissible reasons.
***
The reversal of a conviction based
on a violation of the Venue or Vicinage Clauses, even when styled as a
“judgment of acquittal” under Rule
29, plainly does not resolve the bottom-line question of criminal culpability . . .
[i]nstead, such a reversal is quintessentially a decision that “the
Government’s case against [the defendant] must fail even though it might satisfy the trier of fact
that he was guilty beyond a reasonable doubt.”
The
Court’s opinion, however, leaves unanswered public policy concerns as posed by
the NACDL Amicus Brief, co-authored by our very own David
Oscar Markus, which explains how the remedy of retrial “invites prosecutors to
engage in even more creative endeavors because it fails to associate any
consequence with incorrect choices.”
