Thursday, December 31, 2020

COVID And Double Jeopardy

The New Jersey Appellate Division has held that double jeopardy does not prevent the retrial of a murder charge that was mistried due to the pandemic.

A jury had been empaneled when the shutdown occurred

On October 26, 2020, seven months after the judge suspended the trial, [the judge] sua sponte declared a mistrial and entered the order under review

The court

We hold that the COVID-19 pandemic—an unexpected, untoward, and undesigned public health crisis, which does not bespeak bad faith, inexcusable neglect, inadvertence, or oppressive conduct by counsel—coupled with the unique facts of this case, presents a legally sufficient reason and manifest necessity to terminate defendants' trial. In analyzing whether to sua sponte terminate a trial due to the COVID-19 pandemic after a jury has been impaneled and sworn, trial judges should consider: (1) the circumstances that created the urgent need to discontinue the trial, including whether it was due to bad faith, inexcusable neglect, inadvertence, oppressive conduct, or prosecutorial or defense misconduct; (2) the existence of viable alternatives; (3) the extent of any prejudice to a defendant by a second trial; (4) whether a second trial accords with the ends of public justice and judicial administration; and (5) any other relevant factors unique to the facts of the case.

Here, the judge considered these factors and did not abuse his discretion by sua sponte declaring the mistrial. 

My own experience with double jeopardy came in this appeal where a mistrial was ordered after three weeks of trial due to the judge's health. (Mike Frisch)

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