Double jeopardy and mistrials
Man, talk about a shoplifting gone wrong. Toneisha Gunnell never figured that when she and her crew went up to the mall to steal some clothing, they'd wind up charged with murder, involuntary manslaugher, and aggravated robbery. But when their car was being chased by mall security, some guy decided to play the hero and jump in front of the car, waving for it to stop. The driver, who wasn't Gunnell, never even slowed down.
The state got three shots at convicting Gunnell. Last week, in State v. Gunnell, the Supreme Court threw the latest conviction out, and said the State wouldn't get a fourth try.
Gunnell's first conviction got kicked back by the 2nd District on aBatsonchallenge. During deliberations at the second trial, the jury sent back a question asking for the definition of "perverse," as in "perverse disregard for human life." The judge didn't answer. The next morning, the bailiff spotted Juror No. 6 carrying several papers into the jury room. Turns out the papers contained a definition of "perverse," and a printout of the definition of involuntary manslaughter, complete with example. She'd looked them up online.
Too late to seat an alternate -- you can't do that once deliberations have begun -- so they called Juror No. 6 out in the courtroom and the judge proceeded to question her. Very briefly; all he did was confirm what she had done. The parties discussed the matter after she'd left, and both the prosecutor and the defense indicated a curative instruction would be sufficient. The judge gave some thought to calling the juror back and asking her questions about how this might have affected her, but decided that the juror, because she was a "nice person," would simply tell everybody what they wanted to hear. Unconvinced that "she's going to be able to put this out of her mind," the judge granted a mistrial, over the defense's objection.
Gunnell's third trial had the same result as the first, but the 2nd District kicked that one out, too, declaring that the judge shouldn't have granted a mistrial. If the defense asks for a mistrial, that waives her double jeopardy protections. But she's entitled to her jury, and that means if the judge deprives her of that, there's got to be a "manifest necessity" for doing so; if there's not, double jeopardy prevents a retrial. The Supreme Court, in a 4-3 decision, agreed that there wasn't.
As you might expect, there's a broad degree of discretion that a trial judge has here, and that's what the three dissenters harp on, not without justification. But O'Connor's opinion for the majority is right on the money. If the judge had brought the juror out and inquired how this would have affected her, and she'd "said the right things," and he'd still declared a mistrial, no one could argue that; once it becomes an issue of credibility of the juror, no appellate court is going to second-guess the trial judge's determination. But here, the judge never did that; he conducted "an inquiry that merely established the misconduct, not any prejudice from it." His decision was based on "mere supposition, surmise, and the possibility of prejudice," and that isn't sufficient.
So, what can we learn from Gunnell?
- Defanging the abuse of discretion standard. There are a boatload of cases holding that a judge abuses his discretion by not exercising any: a flat rule that he doesn't accept pleas on the day of trial, doesn't accept misdemeanor pleas, doesn't grant continuances of trial dates. This is one more. There were a lot of things that the majority relied on in coming to its decision -- the brevity of the hearing (from start to finish, the whole thing clocked in at less than half an hour), the fact that the State initially agreed with the idea of a curative instruction -- but if the judge had simply asked a couple of questions on whether the juror could put that aside, this wouldn't have been reversed. If you're appealing on issue that involves that standard, look for ways you can show that the judge wasn't doing what we'd expect him to do: think it through, and come to a reasonable decision.
- Constitutional rights have teeth. It probably wouldn't have been reversed, either, if the defense had moved for a mistrial and the judge had denied it, although that's a much closer call; there's a constitutional right to a fair trial, too. But if you can define a particular right, especially a core one like double jeopardy, it's a big help.
- Doing it because the judge thinks it's a good idea doesn't mean it's a good idea for you. For prosecutors: even if it does get reversed because the judge didn't grant a mistrial, you still get another shot. You don't here. It's fairly clear from the opinion that the prosecutor went along with the mistrial simply because the judge decided to grant it. First, you've got to know that "manifest necessity" is a very high standard, and the consequences of getting the wrong answer to that question, for you, are very severe. Second, make your record. Defense lawyers are generally a lot better at this than prosecutors, because prosecutors wind up appealing so few cases. If the prosecutors here had simply told the judge, "Hey, just to be sure, why don't we bring the juror back and ask her a few more questions," this wouldn't have happened.
Another thing. Those of you who are a little discerning, but not familiar with Ohio law, might be thinking, "why was there a third trial?" Wouldn't the issue of double jeopardy have been resolved in an appeal from the second one? Not the way it works. In 1971, the Supreme Court held that you couldn't directly appeal the denial a motion seeking dismissal for double jeopardy. In 1980, they changed their minds and said you could. In 1990, they changed their minds again and said you couldn't. Although that of course wasn't an issue in Gunnel, two of the concurring judges said the court should change its mind again.
One last point. There is a way around the lack of direct appeal: you can file a habeas action in Federal court, arguing that your constitutional rights are being denied by continued prosecution. There's a drawback there, though, which Gunnel encountered: the law on habeas relief requires you to show that the state's decision represents a clear misapplication of the law as determined by a controlling U.S. Supreme Court decision. In other words, if you're talking about an abuse of discretion situation, it's going to be hard to get habeas relief.