There were three overtures in the last General Assembly requesting the SJC to take over original jurisdiction in the Leithart case. The SJC has ruled on those three overtures in the negative. The reasoning of the overtures was that a mistrial should have been declared, given the conflict of interest of the prosecutor. Given, then, a failure to act (regarding the conflict of interest, NOT the charges themselves: the decision of the SJC miscontrues the overtures on this point) on the part of PNW Presbytery, the SJC should take over original jurisdiction. The judgment concludes that BCO 34-1 does not allow the General Assembly to assume original jurisdiction over a case that has already been adjudicated. Then, invoking the principle of double jeopardy (though qualifying it by saying that new grounds for charges could emerge in new publications), the decision says that a person cannot be charged for the same crimes after being acquitted (this is the definition of the principle of double jeopardy).
On the key issue of the mistrial, the concurring opinion states that a mistrial can only be declared while the trial is ongoing. It cannot be declared after the trial is concluded. However, the concurring opinion (written by RE Sam Duncan) disagrees with the main decision in one respect, by saying that there was a refusal to act on the part of PNW Presbytery, since the Presbytery did know of the Prosecutor’s struggles, but did not report this fact to the Presbytery. He says that there was a time to request original jurisdiction, and that was during the time the complaint was being handled in the PNW Presbytery. During that time, the decision of the PNW Presbytery could not be viewed as final, and thus there would have been no double jeopardy.
The basis for the main decision, however, is the concept of double jeopardy as it has been viewed in the Western legal tradition and the Constitution of the US. As far as I know, there is nothing in the BCO that even supports double jeopardy. If someone were continuing to commit adultery, and was acquitted the first time in an ecclesiastical court, would that mean that we could not bring up charges again based on his continuing sin? Similarly, the views of Leithart, if they are in error, are continuing offenses. Those books are still being published and sent out. Leithart hasn’t changed his views whatsoever. He still teaches error after the trial is concluded.
Still, this decision does not leave us with a lot of choices. Leithart has moved to Birmingham, AL, which is in the jurisdiction of Evangel Presbytery. There are some issues that will probably come up with regard to that move. It is still disappointing that our SJC refuses to address the doctrinal issues at stake. This decision will not promote either the peace or the purity of the church.