Bloomberg Law
March 28, 2023, 5:43 PMUpdated: March 28, 2023, 6:20 PM

Most Justices Skeptical of Retrial Claim in Wrong Venue Case (1)

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The US Supreme Court appeared unconvinced that trying a criminal case in the wrong place precludes prosecuting it again at the correct venue.

Several justices at argument on Tuesday suggested a retrial prohibition went too far in addressing a constitutional requirement that prosecutors bring cases in the district where the crime occurred. It’s a concept referred to as proper venue.

“There are many treatises from the founding era and extending into the 19th century” that support the ability to retry a defendant, Justice Samuel Alito said.

And Justice Clarence Thomas said the normal remedy for constitutional errors is to retry the defendant.

Timothy Smith was convicted of stealing trade secrets from a Florida company from his home in Alabama. A Florida jury convicted him, but the US Court of Appeals for the Eleventh Circuit vacated the verdict. It said, however, that Smith could be retried in Alabama.

Justice Kentaji Brown Jackson said the venue right was intended to ensure that the community victimized by the crime gets to weigh in through a jury of their peers.

So the right remedy is to vacate the conviction brought in the wrong place and allow it in the other, she said.

“What you want is a vacatur plus a statement from the court that you can’t be retried,” Jackson told Smith’s attorney, Samir Deger-Sen.

“Your remedy robs” the community “of the ability to speak to the crime,” she added.

But Justice Sonia Sotomayor suggested the government shouldn’t get another chance after it failed to secure a valid conviction.

“Why are we giving the government another chance at an apple it already took a bite at?” she asked.

And Chief Justice John Roberts was concerned that a rule allowing for retrial could result in bad faith charges.

“How many times does the government get to either mistake or deliberately sue in the wrong venue?” he asked the government’s lawyer, Sopan Joshi.

Roberts suggested that prosecutors could bring several cases one after the other to try to “wear down the defendant” and get him to plea.

Several justices suggested that even if the court finds that the government can bring a new case, Smith might be able to get the charges dropped based on double jeopardy principles.

The government has not sought to retry Smith.

The case is Smith v. United States, U.S., No. 21-1576, argued 3/28/23.

(Updated with quotes from transcript.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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