No double jeopardy problem with mistrial when the defendant refused to continue trial with less than 12 jurors

In U.S v. Davis the defendant was charged in a 16-count indictment with various offenses arising out seven armed robberies. During the jury selection one of the prospective jurors, a dance instructor, announced she had a problem serving because she was paid by the hour and would not be paid during the trial. Another prospective juror said her English was poor. Both were seated as jurors anyway. The 12 jurors were empaneled, but there were no venire members remaining to select as alternates, and the trial began without alternates. After the trial began, the defendant announced that he was dissatisfied with his court-appointed counsel and insisted on representing himself. The defendant also announced to the court that he wanted to go back to his cell for the remainder of the trial and turned down an offer that would have allowed him to monitor the proceedings from his cell. The trial continued under those conditions, with the defendant representing himself from his cell. When the trial court took an early lunch break to review the issue of the defendant’s absence from the trial, the dance instructor approached the trial judge and persisted about the loss of income she faced and the affect this would have on her finances. The non-English speaker also approached and informed the trial court and informed the court that she did not understand everything. When the defendant was asked if he would agree to go with less than twelve he refused. Because the opening statements had been given, the trial judge decided he could not ask the clerk to send up more prospective jurors. The court found it necessary to dismiss the two jurors. The defendant advised the court that he did not agree to a jury trial of less than twelve jurors. The trial judge decided the only alternative was a mistrial. Defendant’s standby counsel moved for to dismiss under Double Jeopardy because he argued there was no manifest necessity. The district court denied the motion and the defendant took an interlocutory appeal.

The issue in this appeal was whether a retrial was prohibited under the Fifth Amendment of the U.S. constitution. The “Double Jeapardy Clause” states that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Jeopardy attaches when the jury is empaneled and sworn and subject to limited exceptions is entitled to have his case decided by that jury. One of those exceptions applies when the mistrial was caused by “manifest necessity,” which means “the ends of public justice would otherwise have been defeated by continuing the trial.”

The 11th Circuit found no Double Jeopardy violation caused by the trial court declaring a mistrial. Rule 23(b) required a jury be composed of 12 persons and proceeding with less than 12 requires stipulation by the parties. The defendant objected to proceeding with a jury of less than 12. The court found that dismissal of the juror with poor understanding of English was manifest necessity. While she showed sufficient language proficiency during voir dire, she brought her language difficulty to the trial court’s attention after the trial started. Under those circumstances dismissing her as a juror became a matter of manifest necessity. Davis’s position was against a jury of less than 12 and his position was for a trial with the original 12. Because that was impossible due to the language difficulty of the juror, the mistrial was the only alternative.

Please read my previous entry to the criminal defense lawyer blog. This one, March 17, 2013, is about theft.