Sua sponte mistrials and double jeopardy
Manuel Rodriguez was charged with raping and kidnapping his 11-year-old stepdaughter. The first time the case was tried, the judge declared a mistrial because he believed that improper evidence had come in. Rodriguez was convicted of both counts in the second trial.
Last week, in State v. Rodriguez, the 8th District determined that the judge never should have declared a mistrial the first time around. That meant that double jeopardy barred his retrial, and his conviction was vacated and he was discharged.
The issue of the mistrial turned on a fine point of the rape shield law. The victim in Rodriguez's case had earlier claimed that her 18-year-old stepbrother had raped her. Had this allegation been false, testimony about it would have been clearly admissible. That's the import of State v. Boggs, a 1992 Supreme Court decision: if the court can't determine that the allegation is false, it involves a question of "sexual activity," and thus questioning on it is barred by the rape shield statute.
Nobody argued that the allegation was false; in fact, it was the defendant's contention that the victim made the allegations against Rodriguez because she was upset that nothing was done in response to her claims about her stepbrother. The court therefore admonished both parties that they were not to ask any questions about the earlier rape; the defense was allowed to ask questions about whether the victim was upset with her brother and whether that was why she had alleged that Rodriguez raped her, but that was as far as they could go.
Best laid plans of mice and men, and all that: the victim blurted out, both in direct and cross, about being raped by her stepbrother, and after pondering the issue for a while the trial judge decided that this required him to declare a mistrial.
A mistrial obviously has some double jeopardy ramifications: it means that the defendant has to be tried again. In the vast majority of cases, the double jeopardy issue is avoided because the defendant is the one requesting the mistrial, and by doing so waives his objection to a retrial. (In the same way that an appeal seeking reversal of a conviction is, if successful, deemed a waiver of double jeopardy.) For roughly similar reasons, double jeopardy doesn't preclude retrial if there's a hung jury. In fact, there are only a couple of circumstances where the defendant can't get retried after a mistrial. One is where the prosecutor has engaged in misconduct for the purpose of goading the defense into seeking one, as I explained a while back here.
The other, though, is where the judge ran into trouble: if the judge abuses his discretion in declaring a mistrial, then retrial is barred. That's a fairly complex question, and the opinion in Rodriguez will guide you through some of the cases. Basically, though, it boils to down to a question of whether there was a "manifest necessity" for calling a mistrial. In this case, although the judge stated that the defense had violated his ruling on what was the proper scope of examination, the transcript revealed that the victim's responses were spontaneous. The judge didn't explore any other alternatives, like a curative instruction, and neither the defense or prosecution had moved for a mistrial.
This was a tough call that easily could have gone either way. I wouldn't be surprised to see the state appeal this -- in fact, I'd be surprised if they didn't -- and it could wind up being decided in Columbus: the Supreme Court really hasn't addressed this particular issue in almost 20 years. The last time it did, it reversed a ruling that the trial court had acted improperly in declaring a mistrial, holding that the judge's decision in that regard was entitled to great deference. Which, of course, is the problem with an abuse of discretion standard: it's so deferential that in many cases it can virtually immunize a court's decision from judicial review.
In the meantime, if you're a trial judge, a pretty safe rule of thumb is not to declare a mistrial unless one side or the other asks for one. And if you're a defense lawyer and the judge declares one, make sure you object; if the lawyer here hadn't, the double jeopardy issue would have been waived.