Just one criminal opinion. Not much going on in Annapolis this week.

Criminal Law:
STATE v. FENNELL
Court of Appeals, Filed May 17, 2013
http://mdcourts.gov/opinions/coa/2013/72a12.pdf
Short version: Prior to declaring a mistrial for a hung jury, the trial judge should explore reasonable alternatives. If the jury indicates agreement on some counts, the trial judge should consider partial verdict prior to declaring mistrial.

Facts: The jury was sent to deliberate at 5:50 pm. At 9:00 pm The jury sent a verdict form to the trial judge as a “note” showing the vote count on various charges. On 3 of the counts, they noted that they were 12-0 Not Guilty. On 2 counts, they noted a 6-6 split and somehow ended up 6-5 Not Guilty on one count. When the jury seemed deadlocked at 9:30 pm, the defense asked (unsurprisingly) for a partial verdict which the State (unsurprisingly) objected to. The trial judge denied the defense request and granted a mistrial on all charges due to the hung jury.

Since this is a light week, I’ll take a look at double jeopardy using too many hyperlinks without jump cites.

Double jeopardy is hardly a new concept, having been found in ancient Roman law and ancient Jewish law.

“Writing in the 17th century, Lord Coke described the protection afforded by the principle of double jeopardy as a function of three related common-law pleas:
autrefois acquit, [autrefois means “formerly” and acquit means… well, scholars maintain that the translation was lost hundreds of years ago]
autrefois convict,
and pardon.”

“Blackstone later used the ancient term ‘jeopardy’ in characterizing the principle underlying the two pleas of autrefois acquit and autrefois convict. That principle, he wrote, was a ‘universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offense.’”

This was later incorporated into the Bill of Rights as “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

And while some believe that the founders intended this to apply only to capital punishment, believing that the term “life or limb” is literal, the Courts have held that it applies to all cases where a second punishment is attempted to be inflicted for the same offence by a judicial sentence.

But “Double jeopardy” has been held to apply to more than just conviction, acquittal, and pardon.

“Even if the first trial is not completed, a second prosecution may be grossly unfair.
* “It increases the financial and emotional burden on the accused,
* It “prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing,
* And it “may even enhance the risk that an innocent defendant may be convicted.
“The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed”

And so, “as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.”

That being said, “[u]nlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.”

“The law has invested Courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be defeated.”

Where the defendant makes a motion for mistrial, it is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. This is true so long as the motion for mistrial is not attributable to prosecutorial or judicial overreaching.

Otherwise, “[t]he prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.”

Manifest means easily understood or recognized by the mind : obvious
Necessity means something that is necessary, which in turn means absolutely needed : required.

And so, in order to avoid “the confinement of the jury till death if they do not agree,” “it is manifest that the key word ‘necessity’ cannot be interpreted literally.” Instead, the courts require a “high degree” of necessity for a mistrial over a defense objection.

By definition, something that is necessary can have no alternatives. To meet the ‘high degree’ of necessity, there must be no reasonable alternative to the declaration of a mistrial.

“A genuinely deadlocked jury is considered the prototypical example of a manifest necessity for a mistrial.” (Prototype or paradigm?) A “genuinely deadlocked jury” is at “more than an impasse; it invokes a moment where, if deliberations were to continue, ‘there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors.”

In Fennell, the defense was “ready to ask you to let it go, Judge.” The defense then requested a partial verdict, which the state objected to. The Court stated that it wasn’t going to take a verdict, to which the defense replied “okay.”

If this was a defense request for mistrial, then there could be no jeopardy bar to re-prosecution. If “okay” signified agreement with the trial court’s decision, then there could be no appeal.

No to both. The Court held that the trial judge declared a sua sponte mistrial “with respect to the three charges at issue here” and that the defense “consented — and indeed requested — a mistrial as to the two indisputably undecided charges.” Even though the defense said “okay” to the trial judge’s decision not to take a verdict, that was not seen as sufficient to overcome his request for partial verdict.

(Don’t get too excited here; while the idea that one can make a request for partial mistrial is novel, I don’t think the opinion supports expansion of the concept outside of the MJOA/verdict context)

Because of this, the Court used a “manifest necessity” standard and held that “Because the trial judge was on notice that the jury may have reached a partial verdict, an ambiguity as to unanimity persisted through the colloquy with the jury, defense counsel requested a partial verdict, and the specter of coercion was low due to the posture of the jury’s deliberations, Maryland Rule 4-327(d)” [allowing partial verdict] “provided the trial judge with a reasonable alternative to the declaration of a mistrial. Thus, before a proper finding of manifest necessity for a mistrial could have been made, the trial judge should have inquired into the jury’s status of unanimity prior to its discharge. Failure to do so was an abuse of discretion, and retrial on the charges of first degree assault, conspiracy to commit first degree assault, and conspiracy to commit robbery is barred by double jeopardy.”

In a footnote, the Court noted that they “assume, without deciding,” that the same analysis “applies equally where a jury votes to acquit on a greater offense and is hung as to a lesser-included offense.”

And that, I believe, thoroughly exhausts my interest in this otherwise minimally interesting case. Good night!