concurring in part and dissenting in part:
I concur in the majority view that trial errors require a new trial. But I dissent from the majority view that the judge’s action in declaring a mistrial and the defendant’s subsequent trial did not violate the constitutional provision against double jeopardy. For that reason I would reverse the defendant’s conviction.
The rule governing the right to retry a defendant in a criminal case after a mistrial had been declared was set forth 167 years ago in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165. The Supreme Court warned:
“[T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” (Emphasis added.) (22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.)
In my judgment, to sanction the granting of a mistrial in this case is to ignore those words of the United States Supreme Court in Perez.
The majority emphasize that the decision whether to grant a mistrial must be left to the sound discretion of the trial judge, and I agree. But the majority opinion omits one overriding fact: the judge did not believe the defendant was in jeopardy after the jurors had been sworn but before any evidence had been heard. The State concedes that the judge was in error. When a court is acting under a misconception of the facts or the law, its exercise of discretion is seriously, if not fatally, flawed. See Lawson Products, Inc. v. Avnet, Inc. (7th Cir. 1986), 782 F.2d 1429; Beermart, Inc. v. Stroh Brewery Co. (7th Cir. 1986), 804 F.2d 409; cf. Williamson v. Swank (1971), 2 Ill. App. 3d 600, 603, 276 N.E.2d 737 (In determining whether discretion had been abused in the grant of a new trial, the question was whether the trial judge acted under “a misapprehension or clearly erroneous understanding of the law”).
It is my judgment that the record must reflect the “very plain and obvious causes” required by Perez and that this record does not do so. All we know is that the judge received a note from six or seven jurors. The contents of the note we do not know. The State represented that the note was an indication that the jurors “may not be able to give both sides a fair and impartial trial.” (Emphasis added.) The judge made no such statement; he said only that the jurors wanted to discuss the matter with him. He did not discuss the matter with the jurors. Instead, he made a subjective determination, based on nothing except his personal observation, that the jurors “appeared to be frustrated.” On that flimsy ground, he granted a mistrial over the defendant’s objection.
The majority seek to distinguish United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, on the ground that the Supreme Court concluded that the mistrial declared was for the benefit of witnesses, while in this case, the mistrial was declared for the benefit of the defendant. Any conclusion that the mistrial was declared for the benefit of the defendant is based on speculation and nothing more. The defendant did not think so, and certainly some deference must be accorded his views. As the Jorn Court held, the judge’s decision to abort the trial must always be tempered by considering the importance to the defendant of having the case concluded by the verdict “of a tribunal he might believe to be favorably disposed to his fate.” (Emphasis added.) 400 U.S. at 486, 27 L. Ed. 2d at 557, 91 S. Ct. at 558.
In sum, I believe that when a mistrial is declared in a criminal case, the burden is on the State to show that there was a manifest necessity for the judge to do so. There was no such showing in this case. For this reason, I respectfully dissent.