A great deal of military law exists on the interesting topic of double jeopardy. See, e.g., Josey, 58 MJ 105, Bracey, 56 MJ 387, Rosendahl, 53 MJ 344 , and Harris, 51 MJ 191. For a study of the interplay between double jeopardy and dismissed earlier charges for a speedy trial violation, see McClain, 65 MJ 894 (ACCA).
Here is a very recent ruling from the United States Supreme Court showing double jeopardy is alive and well.
1 Cite as: 572 U. S. ____ (2014) Per Curiam
SUPREME COURT OF THE UNITED STATES
ESTEBAN MARTINEZ, PETITIONER v. ILLINOIS
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS
No. 13–5967. Decided May 27, 2014
The trial of Esteban Martinez was set to begin on May 17, 2010. His counsel was ready; the State was not. When the court swore in the jury and invited the State to present its first witness, the State declined to present any evidence. So Martinez moved for a directed not-guilty verdict, and the court granted it. The State appealed, arguing that the trial court should have granted its motion for a continuance. The question is whether the Double Jeopardy Clause bars the State’s attempt to appeal in the hope of subjecting Martinez to a new trial.
The Illinois Supreme Court manifestly erred in allowing the State’s appeal, on the theory that jeopardy never attached because Martinez “was never at risk of conviction.” 2013 IL 113475, ¶39, 990 N. E. 2d 215, 224. Our cases have repeatedly stated the bright-line rule that “jeopardy attaches when the jury is empaneled and sworn.” Crist v. Bretz, 437 U. S. 28, 35 (1978); see infra, at 6. There is simply no doubt that Martinez was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that Martinez may not be retried. We therefore grant Martinez’s petition for certiorari.