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Appeal of a Mistrial

Generally, a defendant may appeal only from a judgment of conviction and sentence.  The federal courts of appeal have jurisdiction of appeals from all final decisions of the district courts.[i]  A judgment is not final until there has been a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.[ii]

A trial judge declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.[iii]  The declaration of a mistrial should be a last resort, implemented only if the jury’s ability to reach a just verdict has been incurably compromised.[iv]

Where a defendant appeals a district court’s order of mistrial in order to preserve his rights under the Double Jeopardy Clause, the U.S. Court of Appeals may exercise jurisdiction over his collateral appeal.[v]  The double jeopardy bar may be avoided if the prosecution demonstrates manifest necessity for any mistrial declared over the objection of the defendant.[vi]  A defendant may waive his right to avoid double jeopardy by consenting to a mistrial; ordinarily, the prosecution may then proceed with a new trial.[vii]  However, when a mistrial is declared without the defendant’s consent, the permissibility of a new trial depends upon the manifest necessity for the mistrial declaration.

In reviewing a district court’s decision to declare a mistrial, the U.S. Court of Appeals often consider three factors:[viii]

  • whether the district court consulted with counsel;
  • whether the court considered alternatives to a mistrial; and
  • whether the court adequately reflected on the circumstances before making a decision.

However, these factors serve only as a starting point and each case is sui generis and is to be assessed on its idiosyncratic facts.[ix]

A declaration of mistrial has the effect of withdrawing the affected charge and specification from a court-martial.[x]  An appellate court will not reverse a military judge’s decision to declare a mistrial unless the military judge has abused his discretion under the particular facts and circumstances of the case before him.[xi]  Nevertheless, in deciding to declare a mistrial, a military judge should engage in a sufficient inquiry as a matter of law to uncover sufficient facts to decide the issue before him.

In cases involving the classic basis for a proper mistrial, i.e., the trial judge’s belief that the jury is unable to reach a verdict, the trial judge’s declaration of a mistrial is to be accorded great deference by a reviewing court.[xii]

Under the sound discretion framework for assessing whether a trial judge abused his discretion in declaring a mistrial, a reviewing court first looks to whether the trial judge rationally could conclude that the grant of the mistrial was compelled by manifest necessity or whether the ends of public justice demanded that one be granted on the peculiar facts presented.  Next, the reviewing court considers whether, on the one hand, the trial judge acted precipitately, or whether, on the other hand, the trial judge expressed concern regarding the possible double jeopardy consequences of an erroneous declaration of a mistrial, heard extensive argument on the appropriateness of such a measure, and gave appropriate consideration to alternatives less drastic than granting a mistrial.[xiii]

In Ross v. Petro, 515 F.3d 653 (6th Cir. Ohio 2008), the court held that, an appellate court is hardly at liberty to use the 20/20 vision of hindsight in evaluating whether a mistrial decision represented an exercise of sound discretion, but the court should, in the exercise of due deference, necessarily confine its review to the facts known to the trial judge when the mistrial was declared.

[i] 28 USCS § 1291

[ii] United States v. Gomez, 120 Fed. Appx. 930 (3d Cir. 2005)

[iii] Baum v. Rushton, 572 F.3d 198 (4th Cir. S.C. 2009)

[iv] United States v. Lara-Ramirez, 519 F.3d 76 (1st Cir. P.R. 2008)

[v] United States v. Gomez, 120 Fed. Appx. 930 (3d Cir. 2005)

[vi] Baum v. Rushton, 572 F.3d 198 (4th Cir. S.C. 2009)

[vii] United States v. Lara-Ramirez, 519 F.3d 76 (1st Cir. P.R. 2008)

[viii] United States v. McIntosh, 380 F.3d 548 (1st Cir. Mass. 2004)

[ix] id

[x] United States v. Dossey, 66 M.J. 619 (N-M.C.C.A. 2008)

[xi] id

[xii] Baum v. Rushton, 572 F.3d 198 (4th Cir. S.C. 2009)

[xiii] id

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