Tuesday, April 11, 2017

Manifest Necessity

The Delaware Superior Court denied a criminal defendant's motion to dismiss on double jeopardy grounds here the trial judge had recused himself

Ms. Marvel moves for dismissal of the charges brought against her. On October 27, 2015, Ms. Marvel was arrested, and after she waived her right to a trial by jury, her case was scheduled for a bench trial. Within a week of when Ms. Marvel’s trial was to begin, an investigator from the Department of Justice contacted Ms. Marvel’s mother. The investigator asked Ms. Marvel’s mother whether she had worked for the courts and if she had ever worked for the trial judge. The Department of Justice conducted its investigation of Ms. Marvel’s mother without the knowledge of defense counsel.

The trial judge conducted an office conference on February 21, 2017, the day before the start of trial. During the course of that conference, the State informed the trial judge and defense counsel that

about a year and a half ago, November of 2015, when I started trying this case, I met with [defense counsel]. He did mention . . . your Honor had perhaps worked with the defendant’s mother in the past and your Honor had specifically requested as a favor that [defense counsel] take this case. We did contact the defendant’s mother and she indicated that she had worked in Chambers but not with your Honor directly.

When the State made this information known, both the trial judge and defense counsel indicated that they had no recollection of these circumstances.  Defense counsel reiterated in his reply brief that he had no knowledge of such a conversation nor did he have knowledge of the trial judge asking him to take the case as the Office of Defense Services appointed him to represent Ms. Marvel.  After learning that the Court did not have a concern about a potential conflict of interest, the State consented to a bench trial. Ms. Marvel’s defense counsel informed the Court that he did not see a conflict.  After discussing the evidence that both parties intended to present during the trial, the trial judge consented to a bench trial.

The State called five witnesses at the trial. The judge then sent this email 

[i]t has come to his attention that the defendant in this case is [a friend’s] daughter. I think this presents a problem with my going forward to the case. Moreover, I do not believe that the problem can disappear simply by having counsel ‘agree that we are satisfied that the Court will be completely impartial’ or any such thing. I am open to hearing any input anyone has on the subject. . . . Since counsel for the defendant first requested a bench trial, I’m a little surprised that this fact wasn’t made known to me before we started. Possibly it wasn’t known by him either. In any event, I certainly do not look at this as a fault of either the State or the Court. Hence, no issue of double jeopardy would come into play.

But after a teleconference, the judge concluded

[b]ecause of the belated understanding of the Court that Defendant Marvel is the daughter of a long time friend of the bench trial Judge, who is, in essence, the entire jury in this case, the continuation of the trial (presently approximately one-half completed) cannot go forward to verdict. To state the obvious, this is the equivalent of all twelve jurors, after the first day of testimony, reporting to the Court that they are friends with the defendant’s mother, but had been unaware of that association until the completion of the first day of trial. Upon application of the State, without comment by the defense, and in concordance with the belief of the Court, a MISTRIAL, not the result of any impropriety on the part of the State or the Court, must be declared.

Here

under the circumstances of this case, the Court finds that the trial judge declared a mistrial out of manifest necessity. As there was manifest necessity, double jeopardy does not bar the State from retrying the charges against Ms. Marvel. This conclusion is not altered by whether defense counsel objected to the decision or not.19 Therefore, this Court does not decide whether the defense counsel’s actions prior to the declaration of a mistrial were sufficient to constitute an objection.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/04/the-delaware-superior-court-denied-a-criminal-defendants-motion-to-dismiss-on-double-jeopardy-grounds-here-the-trial-judge-ha.html

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