When are a mistrial and retrial double jeopardy?
Although the Fifth Amendment protects criminal defendants from double jeopardy, that protection does not apply when, for a conviction requiring a unanimous verdict, the jurors cannot agree. During oral argument Monday morning in Renico v. Lett (09-338), the Court will consider whether double jeopardy protections apply when the trial judge declares a mistrial based on a certain mix of signals from the jury which, in the court's judgment, indicate they are unable to reach a unanimous verdict.
Respondent Reginald Lett was tried on second-degree murder charges. When jury deliberations began after the four-day trial, the jury quickly sent signals "“ in the form of two notes to the judge "“ indicating that they might be deadlocked. In the first note, they expressed concern that the volume of their deliberations was disrupting other proceedings in the courthouse; the second note asked what would happen if they could not agree on a verdict. Upon receiving the second note, the judge convened the jury and asked the foreperson whether the jury was going to reach a unanimous verdict. After some hesitation, the foreperson replied simply "no." The trial judge immediately declared a mistrial. Lett subsequently faced a second trial, during which he was convicted and sentenced to sixteen to forty years in prison on the murder charge.
Lett appealed, arguing that the declaration of a mistrial in his first trial violated his right to be free from double jeopardy. The Michigan Supreme Court affirmed the trial judge's decision as an exercise of "sound discretion," explaining that she acted reasonably based on the jury notes and the foreperson's statement. Lett then filed a habeas petition in federal district court, which granted him relief. The trial judge had, in the federal court's view, taken inadequate steps to ensure that the jury was indeed deadlocked when she declared the mistrial. On appeal, the Sixth Circuit affirmed the district court's grant of habeas relief in an unpublished opinion.
In its merits brief, the state begins with the premise that the double jeopardy bar is not absolute. The controlling Supreme Court precedent is United States v. Perez (1824), which held that a second trial does not violate the defendant's constitutional rights as long as the trial judge has declared a mistrial in the first proceeding based on "manifest necessity." There is no mechanical formula to determine whether a new trial is a "manifest necessity"; rather, in Perez, the Court merely required the trial judge to exercise "sound discretion" in making that decision.
According to the state, the paradigmatic case of "manifest necessity" is a deadlocked jury, but here too there is no consensus on what constitutes a deadlocked jury, and the Court has not addressed this issue before. Indeed, the state contends, the fact that the courts of appeals are split on the question whether a finding of manifest necessity is warranted based on jury deliberation exceeding a given time limit demonstrates the need to defer to the decisions of the trial courts regardless of their exact reasoning.
In the state's view, federal courts should accord two separate kinds of deference to findings of "manifest necessity" by state courts. First, as a general matter, trial courts are better placed than federal courts, acting years after the fact, to determine whether a particular mishap makes a new trial necessary. Second, under AEDPA, federal courts must use a highly deferential standard to review state court judgments on the merits of criminal cases. Unless the trial judge's decision was "contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent," the federal court must deny habeas relief. Here, because the Court has never addressed the standards for evaluating the "sound discretion" of a mistrial declaration, no "clearly established" Supreme Court precedent existed for the Michigan Supreme Court to unreasonably apply.
Finally, and in any event, Lett's first trial judge reasonably declared a mistrial. The judge concluded that the jury was deadlocked based on the jury's messages implying a heated disagreement among its members and at least the possibility of a deadlock, as well as her public questioning of the jury foreperson. Additional evidence that the decision was reasonable, the state emphasized, comes from the fact that the second jury unanimously convicted Lett after just a little over three hours of deliberation.
In his brief on the merits, Lett concedes that federal courts owe state courts a high degree of deference in declaring a mistrial, but he counters that such deference is due only when a trial judge uses "sound discretion," as required by Perez. And in particular, there is a presumption against terminating jury deliberations that could potentially return a verdict in the defendant's favor. Here Lett relies on language in Perez indicating that the power to declare a mistrial "ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes." Moreover, even to the extent that the courts of appeals now employ slightly different guideposts to determine when a trial court has exercised "sound discretion," they uniformly require a showing that the judge "[took] steps to assure him or herself that the jury truly cannot agree, that additional deliberations would be fruitless, and that alternatives to a mistrial are not reasonable or viable."
In this case, according to Lett, three actions by the trial judge demonstrated that her decision gave insufficient weight to the presumption against a mistrial. First, the judge did not consult with counsel on either side beforehand, adjourning the court so quickly after her exchange with the jury foreperson that Lett had no opportunity to object. Second, the judge did not explore alternatives short of mistrial to ensure that the jury was truly deadlocked. Third, the judge abruptly declared the mistrial without taking adequate time herself to reflect.
Finally, to the extent that Perez does require a trial judge to seek input from counsel or consider alternatives to a mistrial, no deference is warranted under AEDPA, as Lett's first trial judge was not exercising sound discretion and the Michigan Supreme Court unreasonably applied the precedent by affirming her decision.
One further issue may be worth noting. In response to the state's assertion (albeit in passing) that Lett did not raise his Double Jeopardy Clause objection until after his second trial returned a verdict unfavorable to him, Lett responds that the trial judge allowed no time for a motion before ending the trial, and therefore his silence should not be read as acquiescence in the declaration of mistrial.