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Mistrial over Defense Objection May Result in Double Jeopardy
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

A recurring theme in appellate decisions is that in evidentiary and discovery rulings, a trial judge should impose a sanction that is sufficient to rectify the harm but not more. This rationale surfaces with whether a mistrial should be declared over defense objection. The rationale becomes more important for constitutional reasons.

A mistrial may be declared on motion of the defendant, the prosecution, or the judge. Where the conduct of the trial has deprived the defendant of a fair trial, the defense may move for mistrial. CPL 280.10(1). Mistrial may also be declared due to gross misconduct by the defense, resulting in "substantial and irreparable prejudice to the people's case." CPL 280.10(2). Either party may move or the judge may sua sponte declare a mistrial "when it is physically impossible to proceed with the trial in conformity with law."

A court should declare a mistrial only when “manifest necessity” requires it. Hall v Potoker, 48 NY2d 501 (1979). The judge must consider appropriate alternatives and provide a sufficient basis in the record for resorting to this drastic measure.
Normally a mistrial will result in retrial. But where good cause for declaring the mistrial does not exist—where there is no "manifest necessity" to declare a mistrial, constitutional double jeopardy may bar retrial. US v Perez, 22 US 579 (1824); People v Michael, 48 NY2d 1 (1979).

Jeopardy attaches once a jury has been impaneled and sworn. CPL 40.30(1). The defendant has a valued right to have the trial completed by a particular tribunal. Three recent cases illuminate the application of double jeopardy to mistrials.

Hunters as a protected class

In a rather odd case, where the defendant was charged with injuring another while hunting, defense counsel peremptorily challenged several prospective jurors due to their being licensed hunters. The prosecution objected, and the trial judge reserved decision while trial continued. The judge found that licensed hunters were a Batson–like class and that there was no cure for the violation other than to declare a mistrial, which was granted over both prosecution and defense objection. The judge even wrote a decision explaining his rationale. People v Robar, 29 Misc 3d 693 (Co Ct 2010).

The defendant challenged the retrial, arguing that double jeopardy had attached. In a rather sharply-worded decision, the Third Department found no manifest necessity to declare a mistrial in this situation. Robar v Labuda, 84 AD3d 129 (3d Dept 2011). Double jeopardy barred retrial.

Defense counsel’s misconduct

In a First Department case, it was defense counsel’s conduct that was the subject of the trial judge’s ire. During cross-examination, defense counsel repeatedly disregarded the judge’s instructions to not question a police officer about a civil lawsuit. The prosecution requested a mistrial, which the judge granted. In the ensuing writ of prohibition, the appellate court found defense counsel’s conduct to be “blameworthy” and “understandably angered the judge, but did not rise to the level of “gross misconduct.” Declaring mistrial over defense objection violated double jeopardy. Morris v Livote, 105 AD3d 43 (1st Dept 2013).

Juror misconduct

The Second Department weighed in on mistrials with Smith v Brown, 105 AD3d 965 (2d Dept 2013), the issue arising during jury deliberations. One juror had spoken with an attorney about the trial, and had mentioned it to other jurors. Both prosecution and defense agreed that the juror had committed misconduct and should be discharged. The prosecution objected to the trial continuing, while the defense asked that it continue, arguing that the taint had been removed by the one juror being discharged. The judge denied the defense request for an inquiry of the entire panel.

Again, no manifest necessity required a mistrial, and double jeopardy barred retrial.
Alternatives to declaring mistrial

While a judge’s declaration of a mistrial is accorded deference, the judge’s discretion is not unlimited. The prosecution has a heavy burden to demonstrate that the mistrial was not manifestly necessary.

Among the alternatives that a judge should consider are polling jurors to see if they could render an impartial verdict, and a curative instruction. Moreover, in both Morris v Livote and Smith v Brown, the appellate courts noted that the impropriety that occurred did not significantly prejudice the prosecution.

Statute of limitations

Smith v Brown also notes the four-month statute of limitations for a CPLR article 78 was inapplicable: the harm was ongoing and was not time-barred.

© 2013 by Gary Muldoon