A Lesson in Double Jeopardy

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Saturday, March 12th, 2016
A Lesson in Double Jeopardy

The first felony jury trial I participated in was what was then called a robbery by assault with a firearm. I had been licensed to practice for almost exactly one year, and had gone to Judge Archie Brown, one of two felony judges in the county at that time, and asked to be appointed to some cases that were going to trial to gain experience. Judge Brown was kind enough to accommodate me, but concerned enough about the defendant getting a fair trial to appoint me to assist more experienced counsel the first several times.

In this first trial, I was assisting a lawyer about my own age, but with two years more experience. (I went to law school at night, and didn’t start until two years after I got out of college.) Tom Coghlan was not then and is not now a criminal lawyer, but he is now a civil trial lawyer of considerable ability who was headed in that direction at the time of our trial.

We appeared in Judge Brown’s 144th District Court on the appointed day, picked a jury, and began the trial. The State’s first witness was the victim of the robbery, who described there having been two robbers, one considerably shorter than the other. Our client, he averred, was the shorter man.

Since our client was well over six feet tall, it seemed there might be some question about this identification (which was caused, I believe, by the client’s habit of slumping when seated at counsel table).

Tom cross-examined, having the witness again emphasize our client’s relatively short stature, and the witness was excused.

The next witness was the officer who first arrived at the scene of the robbery. He testified on direct examination, and when he was passed for cross-examination, Judge Brown declared a recess.

Tom and I went downstairs to the first floor  “standup” coffee shop to have a cup of coffee and discuss our stroke of luck in the victim’s misidentifying our client.

As we rounded the corner from the elevator, to our amazement we saw the police officer who had just given his direct evidence and had not yet been cross-examined standing at a table, nodding his head in response to something that was being said to him by one of the jurors in the case. As we stood there for the next minute or so not knowing quite what to do, the conversation continued. The police officer looked up, saw us, and from the look in his eyes for the first time realized what he was doing and how inappropriate it was.

Tom and I went back to the courtroom to report what we had seen.

As we reached the courtroom, Judge Brown, who had been hearing a probation matter since declaring the recess in our trial, was just getting off the bench and retiring to chambers. The bailiff urged us to let him have a break, as he had been working since we left.

With my limited experience, I wasn’t about to challenge that, so I went over to counsel table to be seated. Tom, with the self-assurance born of his three long years at the bar, had proceeded on to the judge’s chambers, as I realized immediately upon having a seat at counsel table.

I got up and walked into the judge’s chambers; as I entered, the judge, a man of great wisdom and learning but with a rather short fuse, was all but shouting: “That’s the first damn thing we tell them—it’s right there on the first page of the jury manual. They’re not to mingle with or talk to the lawyers and witnesses in the case.”

With that, he got up, went to the door, and called to the bailiff to go down to the coffee shop and find the named juror and bring him to his chambers. In short order, the bailiff returned, juror in tow.

“Were you talking to one of the witnesses?” the judge asked.

“Yes, Your Honor. I guess I was. I just didn’t think . . .” the juror began to reply.

“Well, this means everything we’ve done so far has been for nothing. We’re going to have to get another panel up here, seat a new jury and begin the trial all over.”

“I’m sorry, Your Honor. I just didn’t think,” the juror said again.

Again the judge went to the door. This time he told the bailiff to go get the other jurors and put them in the box.

We excused ourselves from chambers and sat at counsel table. When the other jurors were in the box, Judge Brown ascended the bench.

“One of your members,” he told them, “was seen talking with a witness during the break. Because of that, I am declaring a mistrial, and we’re going to have to start all over. We gave you those jury manuals so you would read them and this kind of thing would not occur. You are excused. Please return to the Central Jury Room.”

After the jury had left, we asked the judge what he wanted us to do. He told us to stand by, that he was going to have another panel sent up.

After a while, a new panel did arrive. It was late in the day, though, so the only thing that happened was that the judge introduced the defendant and the contending lawyers and recessed for the day, telling the panel to return again the following morning.

The reason I remember so clearly that I had been licensed almost exactly a year at that time is that several of my friends, who took the Bar Examination a year after I did, received word that very day that they had passed the exam. That night I met them and went out with them to celebrate for a couple of hours.

When I got home, there was a call from Tom Coghlan. I returned it.

“Pat,” he asked, “do you remember studying something called ‘double jeopardy’ in law school?”

I said that I did, but so what, since this was our client’s first trial?

“Well, I got to talking to some of the guys here at the office, and one of the partners told me that if a jury is sworn and the defendant enters his plea, the trial must continue until the jury convicts, acquits, or is hung. If the judge turns them loose before then, it’s double jeopardy to select another jury. In other words, they can’t put our client to trial again, unless he waives his double jeopardy rights.”

I could not believe my ears, of course, and I was also embarrassed that I had been out partying while Tom had been working on our case.

He told me that he had already begun work on an affidavit for him and me to sign, setting out that the judge had declared the mistrial on his own motion, not on ours, and he would appreciate it if I would prepare an affidavit for the defendant to sign, setting forth that he wasn’t even consulted on the subject of whether there should be a mistrial, and certainly, therefore, had not given his consent to one.

I went to the office and prepared the affidavit. I also read some cases on the subject of double jeopardy. I learned that the reason for the rule prohibiting a new trial after a mistrial not consented to by the defendant was to protect a defendant against a judge and/or prosecutor who might want a mistrial declared because the case was not going well for the prosecution—to give the prosecutor a chance to put on a better case in a subsequent trial.