Few lawyers beat the high odds against the grant of a petition for rehearing by the U.S. Supreme Court. But the state of Illinois, the losing party in a decision last May, is asking the high court to throw out that ruling in a rare and classic case of, well, oops.

In Martinez v. Illinois, the justices on May 27, in an unsigned opinion and with unusually blunt language, reversed the Illinois Supreme Court. The justices held that the state appellate court “manifestly erred” when it ruled that the double-jeopardy clause did not bar the state’s appeal of a trial judge’s directed not-guilty verdict after the jury was sworn and the prosecution refused to participate in the trial.

By appealing, the state had hoped to retry Esteban Martinez on 2006 charges of aggravated battery and mob action against two convicted felons.

The trial judge’s ruling on the defense motion for the directed verdict came after multiple continuances granted to prosecutors, who had been unable to produce its key witnesses—the two felons. When the clearly frustrated judge refused another continuance and set a trial date, the prosecution then and on the morning of trial announced it would not participate.

“Our cases have repeatedly stated the bright-line rule that ‘jeopardy attaches when the jury is empaneled and sworn,’ ” the justices said, adding there are few clearer rules of criminal procedure.

Martinez’s jeopardy ended when the trial judge acquitted him of all charges, the justices held. Perhaps the “most fundamental rule in the history of double jeopardy jurisprudence,” they said, is that a verdict of acquittal cannot be reviewed without putting a defendant twice in jeopardy.

Before ruling in May, the justices had put Martinez’s petition for certiorari on their conference list 13 times since his filing in August 2013.

But on June 23, the Illinois attorney general filed a petition for rehearing in which she informed the justices that the case, unbeknownst to her office, had become moot more than a month before the justices issued their unsigned decision.

On April 14, Kane County prosecutors had voluntarily dismissed the 2006 charges against Martinez following a plea agreement on unrelated charges. Neither those prosecutors nor Martinez’s defense lawyers informed the attorney general’s office, which represents the state in the U.S. Supreme Court, according to Illinois Solicitor General Carolyn Shapiro. Her office did not learn of the dismissal until May 30—three days after the justices ruled.

Martinez’s counsel before the Supreme Court—the Office of State Appellate Defender—did not learn that the charges had been dismissed until the state filed its petition for rehearing, according to that office’s Darren Miller, who represented Martinez.

“The Kane County state’s attorney did have notice that this was pending in the U.S. Supreme Court,” Miller said.

In its petition for rehearing, the state asks the justices to vacate their judgment because, when they ruled, there was no longer a case or controversy, as required for jurisdiction. The state also argues that the judgments of the lower courts concerning the double-jeopardy claim should be vacated.

“When a case becomes moot during the pendency of an appeal, this court often vacates the lower court judgment,” Shapiro wrote, because that clears the path for future relitigation of the issues at stake. Because the justices made clear their disagreement with the Illinois Supreme Court’s decision, she said, “it would be anomalous to leave that judgment standing if this court vacates its own opinion.”

The justices on July 21 asked Martinez to respond to the state’s rehearing petition.

Reacting to the petition, Miller said, “I’ve never seen anything like this. I’m not aware of the court ever vacating its order on a mootness ground when the party asserting mootness basically sat on it and allowed the court to make its decision, and then, after the fact, saying, ‘This was our right hand, not our left hand doing this.’ We definitely are going to respond and oppose the petition and hopefully the court will agree with our position.”

If the state prevails, Miller said, there would be nothing to prevent authorities from prosecuting Martinez again, because the high court’s double-jeopardy opinion would have been vacated.

Martinez, indicted in 2006, he added, “is free and working and wants to move on with his life. His case had been pending in the Supreme Court since last August. It has been a long road.”