On Point: C. Retrial after mistrial

State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12

court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity

Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed to advise of same, an omission the trial court attributed to “laxness on the part of the State.” The trial court then ruled that,

Alex Blueford v. Arkansas, USSC No. 10-1320, 5/24/12, affirming 2011 Ark. 8

Double Jeopardy doesn’t bar retrial on greater offenses, despite jury foreperson’s report of unanimous votes against those charges, after ensuing deadlock resulted in mistrial.

Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v.

State v. Levi Alexander Rodebaugh, 2011AP2659-CR, District 4, 4/5/12

court of appeals decision (1-judge, not for publication); for Rodebaugh: Bryon J. Walker; case activity

Grant of mistrial was unsupported by “manifest necessity,” hence was an erroneous exercise of discretion, where the complainant failed to show for trial and couldn’t be quickly located. Retrial is therefore barred as a matter of double jeopardy:

¶9        After Rodebaugh’s jury was sworn and jeopardy attached,

Docket

Decision below: Blueford v. State, 2011 Ark. 8

Question Presented (from cert. pet.):

Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

Cert. Petition

SCOTUSblog page

Blueford was tried for capital murder.

Renico v. Lett, USSC No. 09-338, 5/3/10

The state court’s conclusion of manifest necessity for mistrial where the foreperson reported inability to reach unanimity wasn’t unreasonable, hence grant of habeas relief is vacated:

… (T)rial judges may declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity” for doing so. Id., at 580. The decision to declare a mistrial is left to the “sound discretion” of the judge,

court of  appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply

Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial,

State v. Otis G. Mattox, 2006 WI App 110
For Mattox: Scott D. Obernberger

Issue: Whether grant of mistrial over objection, after defense counsel was held in contempt for supposedly violating a court order with respect to questioning a witness, was manifestly necessary so as to permit retrial.

Holding:

¶19      As noted, the chief concerns of the trial court in continuing the trial were the problems occasioned by Schnake being found in contempt,

State v. Richard A. Moeck, 2005 WI 57, affirming 2004 WI App 47
For Moeck: David D. Cook

Issue/Holding1:

¶37 A mistrial is warranted if the mistrial is “manifestly necessary.” The State bears the burden to demonstrate that a “‘manifest necessity’ [exists] for any mistrial ordered over the objection of the defendant.” A “manifest necessity” warranting a mistrial is a high degree of necessity.

State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne

Issue/Holding:

¶13      The Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution prevent the state from trying a defendant multiple times for the same offense. [4] “[G]iven the importance of the constitutional protection against double jeopardy,

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel had asked a State witness,