Lamar Evans was acquitted of burning down a vacant house after his trial judge mistakenly required Michigan prosecutors to prove more than they needed to, all sides now in the case agree.

The U.S. Supreme Court considered whether Evans can now be tried again. “A decision, expected by the end of June, could punch a hole in the U.S. Constitution’s general prohibition against being tried twice for the same crime, known as double jeopardy. Justices appeared torn over how to balance the protection under that rule against potentially setting guilty defendants free by depriving the government of its right to prosecute. The SCOTUS blog in its argument recap reported,  “the central question appeared to be whether Michigan – and the United States, appearing as an amicus in support of the state –would be able to convince the Justices that a workable distinction could be drawn between two kinds of cases:  (1) those in which defendants are acquitted at the close of the prosecution’s case-in-chief based upon the trial judge’s erroneous evidentiary rulings with regard to a required element of the underlying offense; and (2) cases such as this one, in which the trial judge erroneously added an element to the underlying offense, and then entered a directed judgment of acquittal when the prosecution failed to introduce sufficient evidence to prove the wrongly required element beyond a reasonable doubt. The Court has consistently held that the Double Jeopardy Clause of the Fifth Amendment bars retrial in the former context; the Michigan Supreme Court held in Evans that no jeopardy attaches to the “acquittal” in the latter. But if the argument is any indication, the apparent difficulties of administering a constitutional rule that turns on such an elusive – if not illusory – distinction (one which Justice Breyer suggested would yield a “terrible mess”) may well leave the Justices with a far starker and more consequential choice: Allow a small number of criminal defendants to reap windfalls from erroneous rulings that they themselves may have precipitated, or revisit the core principle underlying thirty-five years of double jeopardy jurisprudence.”