How Could This Have Happened?

Apparently this situation is not well known because it is so rare. The deputy district attorney described it as an “obscure” nuance of the law. But ignorance of that bit of the law led to a killer going unpunished. Nobody — no prosecutor, no judge — should allow this to happen again.

In the only news story after the dismissal, the Half Moon Bay Review reported that the case was dismissed because of the rule of double jeopardy. That reason is reinforced in the article through a statement from the district attorney, who is quoted as saying, “This is the only time I’ve seen a case be dismissed because of the double jeopardy rule.” But the defense was only able to plead double jeopardy because the judge made a mistake.

In his motion to dismiss, the defense attorney claims he “never moved for, agreed with, or consented to mistrial.” He relates his version of the meeting in chambers during which he, the deputy district attorney, and the judge discussed how to handle the change in the toxicologist’s planned testimony. He says that he requested they continue the trial without any testimony from the toxicologist and that the judge rejected his request. He says that the judge “indicated” she would declare a mistrial instead and that he interpreted that to mean “her decision was final and not up for discussion.” He doesn’t say whether he attempted to discuss it or to verify that her decision was indeed final. He goes on to say the judge “never expressed any concern regarding double jeopardy if mistrial was declared” and “never asked me or my client if we were in agreement with mistrial.” He offers no explanation for why he did not bring it up himself.

In her response to the motion to dismiss, the deputy district attorney says she is forced to concur with the defense because the record shows he did not consent to the mistrial and because the basis for declaring the mistrial doesn’t qualify as one that would not require that consent. She then lays out the legal rationale. When a mistrial is declared over the objection of the defense, the principle of double jeopardy applies unless the reason for the mistrial is a “manifest necessity,” such as a hung jury. She goes on to explain that even if the defense doesn’t object to the mistrial, silence cannot be interpreted to imply consent. And, actually, the mere fact that the defense attorney proposed a less severe option (i.e., discarding the toxicologist’s testimony entirely and continuing the trial without it) must be interpreted to mean that he objected to the mistrial, even if he never said so directly.

The deputy district attorney goes on to relate a slightly different version of the chambers conference described in the defense’s motion to dismiss. She quotes from the reporter’s transcript, in which the judge describes the mistrial as one option given by the defense in their off-the-record chambers conference. However, once back on the record, the defense attorney said only that “there’s no reason to declare a mistrial, and we can go forward without” the toxicologist’s testimony. And that’s what is in the official record, not anything he said (or didn’t say) during the chambers conference.

So the absence of consent from the defense means a retrial would be allowed only if the reason for the mistrial is a “legal necessity.” The deputy district attorney explains that such legal necessities might include a hung jury or the death or illness of the judge, but not a procedural error. And, unfortunately, “the good intentions of the court in declaring a mistrial does not affect the analysis of what constitutes a legal necessity.” Therefore, because the defense didn’t explicitly consent to the mistrial and because the reason for the mistrial doesn’t qualify as a legal necessity, retrying the defendant would put him in double jeopardy.

If the judge had realized she needed the explicit consent of the defense, she could have made sure it was obtained before calling a mistrial. But she didn’t. Her resulting error let a killer go unpunished.

Don’t let this happen again

If you are involved in a similar case…

Tell your DA about this case so they know to be vigilant to the possibility of another judge making the same terrible mistake. (Or talk to your county’s victim advocate if you don’t have a close working relationship with the DA assigned to your case.)

Urge your DA to check in with all expert witnesses well before the trial begins to make sure they’ve received and reviewed everything they need. If any of them need to revise their testimony, it should be done before the trial begins. Even if a late discovery causes the trial to be delayed, it’s better for that to happen than to risk starting and then interrupting the trial.