State v. Smith, ___ N.J. Super. ___ (App. Div. 2020). Perhaps fittingly, the final published Appellate Division of 2020, written by Judge Fasciale and issued today, centered on the COVID-19 pandemic. This case involved a trial of murder and other charges against two defendants. That trial began on February 12, 2020. By March 15, when the Supreme Court suspended all jury trials, the State was still presenting its case, having offered 29 witnesses, with three or four more witnesses still to come.
After the Supreme Court authorized the resumption of suspended jury trials “consistent with public health precautions with the consent of all parties in June 2020, the Law Division judge conducted multiple status conferences and offered the parties various alternatives as to possible resumption of the trial. He proposed using a larger courtroom, which he offered for inspection, so that social distancing could be maintained, requiring all participants to wear personal protective equipment such as face shields and masks, and installing plexiglass barriers.
The State agreed to resume trial on those bases, but defendants did not. Due to underlying health conditions, they preferred to remain incarcerated rather than resume the trial. Their counsel also objected, due to their own health concerns given their age (one of those counsel was 97 years old) and their belief that the protocols might adversely affect their ability to represent their clients. The trial thus did not resume.
In late October 2020, the Law Division advised that he was considering terminating the trial, since there was “no end in sight” as regarded the pandemic. He asked the parties for briefs, and he heard oral argument. Defendants opposed a mistrial, insisted that trial not resume until pre-pandemic conditions returned, and asserted that a mistrial would bar a new trial because jeopardy had attached. The State disagreed that there would be double jeopardy.
The judge granted a mistrial, finding that the “historic and unprecedented” circumstances of the pandemic created the “manifest overriding necessity” of terminating the trial. He expressed concern that any jury verdict would be “tainted” if trial resumed in October, seven months from when it was suspended, let alone an unknown number of months later. There were simply no viable alternatives.
Defendants obtained leave to appeal the grant of a mistrial, asserting that jeopardy had attached. Applying the abuse of discretion standard of review, the Appellate Division affirmed the Law Division’s action.
Judge Fasciale began by discussing double jeopardy principles. He noted that even if a defendant objects to a mistrial, as here, “termination of a trial after jeopardy attaches does not necessarily prohibit subsequent re-prosecution.” When there is “manifest necessity” for terminating a trial, a re-trial can be permissible. But the State bears a “heavy burden” of showing manifest necessity.
The Appellate Division “extrapolated from the caselaw certain factors for trial judges to consider” in deciding whether manifest necessity existed. Those factors were “(1) the circumstances that created the urgent need to to discontinue the trial, including whether it was due to bad faith, inexcusable neglect, inadvertence, oppressive conduct, or prosecutorial or defense misconduct; (2) the existence of viable alternatives to a mistrial; (3) the extent of any prejudice to a defendant by a second trial; (4) whether a second trial accords with the ends of public justice and judicial administration; and (5) any other relevant factors unique to the case.”
In a lengthy analysis, Judge Fasciale found that all of those factors demonstrated manifest necessity. He found inapplicable cases cited by defendants where a mistrial had been declared in haste or without considering alternative procedures. The pandemic was “[a]n entirely unexpected, untoward and undesigned incident or circumstance.” Thus, double jeopardy would not be violated by a new trial.