On Point: C. Retrial after mistrial

Mitchell D. Green v. Milwaukee County Circuit Court, Appeal No. 24-2980 (7th Cir. Aug. 1, 2025).

Midway through Mitchell Green’s trial, the state moved for a mistrial, and the circuit court granted the state’s motion over Green’s objection. Ultimately, the Wisconsin Supreme Court concluded that the trial judge exercised sound discretion. The 7th Circuit now holds that retrying Green would violate the Double Jeopardy Clause, as a mistrial could have been avoided; i.e., a mistrial was not “manifestly necessary.”

State v. Cesar O. Fernandez-Reyes, 2024AP1668-CR, 3/4/25, District III (not recommended for publication); case activity

COA affirms circuit court’s order declaring a mistrial and denying the defendant’s motion to bar a retrial on double jeopardy grounds where prosecutor learned she had COVID after the first day of trial.

State v. James P. Killian, 2020AP2012, review of a published court of appeals decision granted 1/20/23; case activity

Issues presented (from state’s PFR):

Has the State exposed Killian to multiple prosecutions for the same offense in violation of double-jeopardy principles?

State v. James P. Killian, 2022 WI App 43; review granted 1/20/23; reversed, 2023 WI 52; case activity (including briefs)

The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants the circuit court dismissed the new case as a violation of double jeopardy. The court of appeals affirms.

State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; reversed, 2023 WI 57 case activity (including briefs)

Question presented (from the State’s PFR):

Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial via the testimony of a witness who claimed to have committed the crime but was unrepresented by counsel?

State v. Mitchell D. Green, 2021AP267, 3/22/22, District 1 (not recommended for publication); petition for review granted, 6/22/22, reversed, 2023 WI 57; habeas granted, No. 24-2980 case activity (including briefs)

The state charged Green with crimes including child sex trafficking. The alleged victim testified that another man had trafficked her, but that Green had driven her a particular encounter where a client had spit in her mouth. After the state rested, the defense called Green’s cousin–his name was Cousin–who said that he’d been the one to drive the girl that night. Cousin said he’d done the driving for a third man, Delmar, who’d asked for a ride in exchange for gas money and then invited the alleged victim and another man along for the ride. Cousin said he remembered the incident because when he picked the alleged victim up after the encounter, she had mentioned the mouth-spitting.

State v. Darius Kavonta Smith, 2019AP642 & 643-CR, 8/6/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The DA also commented on witnesses whom Smith had not called. Defense counsel moved for a mistrial because the DA’s belittling of public defenders stigmatized their clients, and his comment about her failure to call witnesses improperly shifted the burden to the defense. The circuit court granted  the mistrial.

State v. Mickey L. Miller, 2017AP2323-CR, 1/29/19, District 1 (not recommended for publication); case activity (including briefs)

Midway through Miller’s trial, the State discovered that two photo arrays had been conducted when both parties thought there had been just one. The State did not immediately disclose this fact. It waited until after the victim testified. The defense obtained a mistrial. The court of appeals holds that double jeopardy did not bar the State from trying Miller again.

State v. Anthony Alvarado, 2017 WI App 53; case activity (including briefs)

In this recommended-for-publication opinion, the court of appeals tackles an issue of first impression in Wisconsin.

State v. Russell C. Troka, 2016 WI App 35; case activity (including briefs)

Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy.