Saturday, February 19, 2022

Judicial Misconduct Bars Retrial On Double Jeopardy Grounds

Do findings of judicial misconduct create a double jeopardy bar to retrial?

The New Mexico Supreme Court answered yes  on the law and facts of a felony conviction

The State belatedly filed its witness list on March 1, 2017, and eight days later, on March 9, 2017, filed an amended witness list to correct an address. That same day, nine days after the discovery deadline and five days before trial, the State provided Defendant with a CD containing audio recordings of statements made by the State’s witnesses and Defendant in interviews with the police.

The day after receiving the CD, on Friday, March 10, 2017, [defense counsel] Seeger filed a motion to continue the jury trial. Seeger argued that he needed more time to review the CD in order to adequately prepare for trial and that, without more time to prepare, Defendant would be denied his right to effective assistance of counsel. That same day, the parties appeared before the judge for a pretrial conference.

At the pretrial conference, the judge denied the motion for continuance without hearing any argument. From that point forward, Seeger remained determined to get a continuance, and the judge remained committed to proceed with trial as scheduled. Their intransigence forms the root of the issue in this case.

When the effort failed

During the trial, Seeger refused to participate in voir dire, challenge any jurors, examine any witnesses, or participate in the selection of jury instructions. Seeger also declined to proffer an opening statement or a closing statement. However, he made three motions for mistrial—all based on assertions of ineffective assistance of counsel resulting from the State’s late disclosures, and, consequently, his asserted inability to prepare for trial.

While the attorney did not speak, the jury did

The jury found Defendant guilty of felony aggravated battery against a household member with great bodily harm, and Defendant appealed to the Court of Appeals.

Which reversed on ineffective assistance but rejected the claim of double jeopardy

Defendant petitioned this Court for a writ of certiorari to review the Court of Appeals’ conclusion that Breit does not apply, and even if it does, the judge’s conduct did not meet Breit’s criteria to bar retrial.

The Breit holding on double jeopardy applies to judicial misconduct

In fact, the reference to the “official” and “official misconduct” is certainly broad enough to include judicial conduct. This was no accident.


we echo the guidance offered to our district courts by the Court of Appeals as to how to respond when an attorney is threatening to withdraw from participation in a criminal trial. “[T]he district court can order new counsel to represent the defendant,” it can “impose a sanction on the culpable attorney while at the same time granting a continuance,” or, should “the attorney still refuse[] to participate in the face of a clear order to do so, the court can invoke its contempt powers against the obstructionist attorney.”

Here, double jeopardy bars retrial

we conclude that under the narrow facts of this case, the judge acted in willful disregard of the resulting reversal thus satisfying the third prong of Breit. Retrial is barred.

(Mike Frisch)

Judicial Ethics and the Courts | Permalink


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