June 26, 2011
Where Pheasants Sleep
The North Dakota Supreme Court has held that double jeopardy prevents a retrial of a DUI case. The court had declared a mistrial after the jury was sworn because:
After the jury was empaneled and sworn, the trial court called a brief recess and the attorneys left the courtroom. At some point, Day [the defendant] was alone in the courtroom with the jurors and the bailiff. When the attorneys returned to the courtroom, they witnessed what appeared to be a conversation between the bailiff, the jurors, and Day. The trial court returned to the courtroom and read the opening instructions. After the instructions were read, the State moved for a mistrial based on the communication between the bailiff, the jurors, and Day.
The trial court, attorneys, and Day met outside the presence of the jury, and Day objected to the State's motion and requested the bailiff testify about the communication. The bailiff testified that some of the jurors were talking about whether pheasants sleep in trees, Day said pheasants often sleep in trees, and the bailiff told the jury about seeing a turkey in a tree. The State renewed its request for a mistrial. Day opposed the motion and requested a curative instruction. The court granted the State's motion for a mistrial and excused the jury.
The court here held that the trial court failed to explore alternatives to the grant of a mistrial. (Mike Frisch)
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