(dissenting in Bellew).
i
Defendant Rodney Bellew was initially charged with four counts of receiving and concealing stolen property over the value of $100, four counts of altering a vehicle identification number (vin) with the intent to mislead regarding identity, and owning or operating a chop shop. Before trial, the prosecutor dismissed three of the four receiving and concealing stolen property counts and the chop shop count because of an inability to produce material witnesses. At the conclusion of a waiver trial before the Honorable Daphne Means Curtis, the defendant was found guilty of receiving and concealing stolen property over $100 and of the four counts of altering a vin with the intent to mislead another regarding the identity of the motor vehicle.
Before sentencing, the defendant dismissed his attorney and retained attorney Walter Pookrum, who filed a motion for a new trial on the basis of ineffective assistance of counsel. Several hearings were held between November 21, 1991, and February 24, 1992. On February 24, 1992, Judge Curtis found prior counsel ineffective in respect to the receiving and concealing of stolen property count, and granted defendant’s motion for a new trial on that basis.
Defendant waived a trial by jury, and a bench trial before Judge Curtis began on June 9, 1992, but was not finished because of the court’s docket. The trial was adjourned until June 23, 1992 upon agreement of the parties.
On June 16, 1992, the prosecutor learned about what seemed to be a business arrangement between new defense counsel and Paul Daniel Curtis, the trial judge’s husband. Although the exact details of the arrangement were not known by the *853prosecutor, business cards indicated that the two individuals shared a common office, a common fax number, and the same receptionist. The prosecutor represented in his written motion that a call to Mr. Pookrum at Mr. Curtis’ office yielded the response that Mr. Pookrum was not presently in but that they would have him return the call.
A motion to disqualify was brought before Judge Curtis on June 23, 1992. Without granting a mistrial, Judge Curtis recused herself "[t]o insure that each of the sides in this particular litigation feels that their rights are protected and that impartiality is assured . . . .”
The litigants then appeared before Judge Dalton Roberson, who almost immediately suggested that the propriety of Judge Curtis’ recusation was a matter for the Court of Appeals, not himself. The prosecutor then argued that the case should continue with another judge. The judge responded by stating twice that he did not think it was permissible to switch triers of fact in the middle of a trial, and that a mistrial had to be declared. Each time, defense counsel agreed. The court scheduled a subsequent hearing to allow the prosecutor to submit authority on the issue of changing triers of fact in a bench trial.
At the hearing, the prosecutor began by stating, "I questioned whether you had to grant a mistrial. At that point, your Honor, I looked into it. The defense said you had to grant a mistrial. I agree, your Honor, I think you should grant a mistrial and assign it for trial.” With defense counsel stating, "I don’t think you have any choice about that,” Judge Roberson formally declared a mistrial. The discussion turned to whether a second trial would violate the Double Jeopardy Clause.
On September. 25, 1992, Judge Roberson issued an opinion holding that retrial would be barred on *854double jeopardy grounds. The prosecutor appealed, and the Court of Appeals affirmed.
ii
At the point that Judge Curtis recused herself, the defense counsel had two choices, each of which he clearly understood. He could have continued the trial before a different judge who had read the transcripts, as the prosecutor initially suggested, and preserved his objections to recusal for appeal in the event of conviction. Alternatively, defense counsel could have opted to abandon the trial and begin anew. Counsel objected to reassignment, insisted on a mistrial, and the mistrial was declared at his request.
The defendant now attempts to fashion a third option, one that is the moral equivalent of eating his cake and having it too. The defendant, who asked for the mistrial, now claims that the state is barred from further prosecution because the mistrial was not necessary. The lead opinion agrees and holds the following:
1. The defendant’s request for a mistrial did not lift the bar to double jeopardy because he did not have the option of completing the trial before the judge who began it.
2. Therefore, retrial is barred unless the prosecutor shows manifest necessity for the mistrial.
3. The retrial was not manifestly necessary because the judge did not "explore” the defendant’s choices before granting his request.
Because I disagree with each of these propositions, I respectfully dissent. I would hold:
*8551. The defendant’s request for the mistrial lifted the bar to double jeopardy because the defendant’s request was not intentionally provoked by the prosecution.
2. Because the mistrial was declared at the defendant’s request, the state does not need to justify the declaration. The "manifest necessity” strand of double jeopardy precedent applies where a mistrial is granted over the defendant’s objection.
3. Even if this case were properly analyzed under the line of cases involving sua sponte declarations of mistrial, or mistrial over the defendant’s objection, thus requiring the prosecution to show manifest necessity, it has met this requirement. Judge Roberson’s decision to grant a mistrial was necessary in the strictest sense of the word. Because counsel resisted any alternative, he had no other choice.
4. The lead opinion’s requirement that the judge must "explore” alternatives available to the defendant may be appropriate where the cause of the mistrial is subject to manipulation by the prosecutor, and the defendant asserts feasible alternatives to a mistrial. Where the trial has begun and the cause of the mistrial is not one that the prosecutor has manipulated to avoid an acquittal, the defendant’s interest in completing the proceedings is subordinate to the public interest in affording the prosecution one full and fair opportunity to present the evidence to an impartial fact-finder.
5. Where the situation triggering mistrial is potential bias of the factfinder, the trial *856court’s exercise of discretion in declaring a mistrial is entitled to the highest deference.
hi
The result in People v Bellew is governed by application of a very straightforward rule: "a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v Dinitz, 424 US 600, 607; 96 S Ct 1075; 47 L Ed 2d 267 (1976); see also Oregon v Kennedy, 456 US 667, 672-673; 102 S Ct 2083; 72 L Ed 2d 416 (1982). After a trial is aborted on the defendant’s own motion, a second trial is barred only "where the governmental conduct in question is intended to 'goad’ the defendant into moving for a mistrial . . . .” Id. at 676. There is not the slightest suggestion of such intent here, nor would the record support it. Therefore, the defendant’s request for a mistrial waives the bar to double jeopardy, and he may be retried.
A
The lead opinion initially errs by analyzing both Hicks and Bellew under the manifest-necessity standard for declarations of mistrial over the defendant’s objection. However, as the facts clearly indicate, there is a critical distinction between the cases. The defendant in Hicks did not move for a mistrial but resisted any alternative to Judge Curtis’ declaration of disqualification. The record in Hicks thus arguably presents the issue whether *857"manifest necessity” justified the mistrial.1 However, this test applies only "[w]here the trial is terminated over the objection of the defendant . . . .” Oregon v Kennedy, supra, 456 US 672 ("in the case of a mistrial declared at the behest of the defendant, quite different principles come into play”).
The lead opinion states that it "cannot conclude that the defendant [Bellew] consented to the mistrial,” because he objected to Judge Curtis’ decision to recuse herself and expressed a desire to conclude the trial before her. Ante at 830. The approach thus confuses defendant’s objection to Judge Curtis’ action with the remedy he sought in light of it.2 It is necessary to support the proposition that, because the defendant’s ideal choice— continuing the trial before the judge whose husband he apparently shared an office with—was no longer available, his request for a mistrial did not amount to consent. However, the analysis fails to acknowledge that this method of analyzing a defendant’s request for mistrial has been rejected by the United States Supreme Court. The relevant inquiry for present purposes is not why counsel believed that a mistrial should be declared, but whether he opted for that alternative instead of choosing to continue the trial. As the lead opinion acknowledges, defendant sought "a declaration of a mistrial.”
In United States v Dinitz, supra, the Supreme Court emphasized that only a request is necessary to lift the bar to double jeopardy.3 The trial court excluded Dinitz’ lead attorney from his trial and *858then declared that if the defendant did not appeal that order, he would have to choose between continuing the trial the next day with co-counsel and a mistrial. Because he felt he needed more time to obtain outside counsel, the defendant elected a mistrial. 424 US 604. He was tried again and convicted on both counts.
A divided panel of the United States Court of Appeals for the Fifth Circuit reversed the convictions for reasons strikingly similar to those employed here to support the conclusion that counsel for defendant Bellew did not consent. See Griffin, J., ante at 831-832. The Court of Appeals in Dinitz reasoned that the trial court’s exclusion of counsel had left respondent no choice but to ask for a mistrial and therefore the "request for a mistrial should be ignored and the case treated as though the trial judge had declared a mistrial over the objection of the defendant.” 424 US 605. The court held that " 'something more substantial than a Hobson’s choice’ is required before a defendant can 'be said to have relinquished voluntarily his right to proceed before the first jury.’ ” 424 US 608 (quoting United States v Dinitz, 492 F2d 53, 59 [CA 5, 1974]).
The Supreme Court granted certiorari and reversed, specifically quoting and rejecting the position that the lead opinion here adopts: that the request for mistrial should be ignored. The Court emphasized that
traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error. ... In such circumstances, the defendant generally does face a *859"Hobson’s choice” between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error. The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error. [424 US 609.]
Double jeopardy rights, unlike the right to counsel, for example, do not require a knowing, intelligent waiver. When a defendant seeks the mistrial, "the central policy of the Double Jeopardy Clause —to protect defendants from governmen ¿-instigated multiple prosecutions and sentences—is not implicated.” United States v Jamison, 164 US App DC 300, 305; 505 F2d 407 (1974), cited with approval in Dinitz, 424 US 609 (emphasis in original). The Jamison court summarized its lengthy explanation4 of why mistrial motions cannot be treated as waivers of rights, which would require the defendant’s personal approval and full advice of rights, with this concise statement:
The startling implication of barring reprosecution after a mistrial brought about by defense counsel’s own errors and on his own motion is that the government could irrevocably lose the right to prosecute for a given crime without itself having committed the least impropriety, and with the trial judge having erred only in declining to second guess defense counsel as to the accused’s best interests. [Id. at 306.]_
*860Confirming that "traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial” the Court further explained in Dinitz, 424 US 609:
The respondent characterizes a defendant’s mistrial motion as a waiver of "his right not to be placed twice in jeopardy” and argues that to be valid the waiver must meet the knowing, intelligent, and voluntary standard set forth in Johnson v Zerbst, 304 US 458 [58 S Ct 1019; 82 L Ed 1461 (1938)]. This approach erroneously treats the defendant’s interest in going forward before the first jury as a constitutional right comparable to the right to counsel. It fails to recognize that the protection against the burden of multiple prosecutions underlying the. constitutional prohibition against double jeopardy may be served by a mistrial declaration and the concomitant relinquishment of the opportunity to obtain a verdict from the first jury. This Court has implicitly rejected the contention that the permissibility of a retrial following a mistrial or a reversal of a conviction depends on a knowing, voluntary, and intelligent waiver of a constitutional right. See Breed v Jones, 421 US 519, 534 [95 S Ct 1779; 44 L Ed 2d 346 (1975)]; United States v Wilson, 420 US 332, 343-344, n 11 [95 S Ct 1013; 43 L Ed 2d 232 (1975)]; United States v Jorn, 400 US 470, 484-485, n 11 [91 S Ct 547; 27 L Ed 2d 543 (1971)] (plurality opinion); United States v Tateo, 377 US [463, 466; 84 S Ct 1587; 12 L Ed 2d 448 (1964)]. [Id. at 609-610, n 11.]
Viewed in this light, the case is on all fours with Dinitz. Bellew faced the same alternatives:
(1) continuing with the trial in spite of the judge’s decision; or
(2) a declaration of a mistrial. (Compare 424 US 609.)
*861Like Dinitz, Bellew selected a mistrial. Thus Dinitz is controlling not only in its rationale, but in its holding.
The lead opinion appears to limit Dinitz to cases in which the defendant can complete his trial with the same factfinder: "Unlike other trial errors, a judge’s decision sua sponte to recuse herself after jeopardy has attached in a bench trial deprives a defendant of the option to obtain a verdict from the first factfinder.” Ante at 832, n 22. While the statement is true, it is constitutionally irrelevant. Like all errors that result in a mistrial, the declaration of a mistrial deprives a defendant of the right to obtain a verdict from the first factfinder.
The issue is not whether the incident precipitating a declaration of mistrial was error or not. The Double Jeopardy Clause protects the defendant’s right to choose to proceed with the trial and preserve the error for appeal if he is not acquitted, or to abort the trial and begin again. If defendant decides to abort the trial, his interests have been protected because he has made the choice.
The availability of an alternative to a mistrial— continuing the trial with another judge—was controlled by the defendant. Because he chose not to exercise it, the retrial he requested was not only manifestly necessary, but absolutely necessary.
B
The attempt to distinguish Dinitz on the basis that Bellew was "deprive[d] ... of the option to obtain a verdict from the first factfinder” is based on erroneous assumptions. First, the Supreme Court has held that the option to obtain a verdict in the first trial is not essential to the permissibility of retrial. In United States v Tateo, 377 US *862466-467, the defendant pleaded guilty during his first trial because of improper threats by the judge. He subsequently withdrew his plea, received a trial, and was convicted. The Supreme Court held that the defendant’s double jeopardy rights had not been violated even though he was involuntarily deprived of the choice to take his case to the first jury:
Tateo contends that his situation must be distinguished from one in which an accused has been found guilty by a jury, since his involuntary plea of guilty deprived him of the opportunity to obtain a jury verdict of acquittal. We find this argument unconvincing. If a case is reversed because of a coerced confession improperly admitted, a deficiency in the indictment, or an improper instruction, it is presumed that the accused did not have his case fairly put to the jury. A defendant is no less wronged by a jury ñnding of guilt after an unfair trial than by a failure to get a jury verdict at all; the distinction between the two kinds of wrongs affords no sensible basis for differentiation with regard to retrial. [377 US 466-467. Emphasis added.]
Second, assuming that Judge Curtis’ decision to recuse herself was erroneous, Bellew in fact had the option to complete the trial and challenge the recusal as error requiring reversal. The prosecutor suggested continuation, but the defendant insisted on a mistrial. The statement that defendant Bellew did not waive these alternatives is thus both factually and legally incorrect.
iv
The foregoing indulges the assumptions that the principle right protected by double jeopardy is the *863right to have the trial completed before a particular tribunal, that the interest in finality is a "lesser included” protection, and that the right to a particular tribunal applies in a bench trial. These positions are premised on the language in Dinitz about "taking [the defendant’s] case ' "to the first jury,” ’ ” quoting United States v Jorn, 400 US 470, 484; 91 S Ct 547; 27 L Ed 2d 543 (1971). Ante at 831, quoting Dinitz, 424 US 608. Applying this language to a bench trial takes it out of context. Losing the trier of fact in a jury trial means that the trial cannot continue. In a bench trial, on the other hand, a second judge may continue the trial from the point of interruption by reading the transcripts. See MCR 6.440(B).5
The question is whether concluding a bench trial with a different judge constitutes double jeopardy. It appears that a defendant’s valued right to a particular tribunal is merely an incident of the defendant’s more generalized interest in being able to complete the trial itself. Professors Westen and Drubel’s explanation of this position and examination of the relevant cases merits lengthy mention:
Before an analysis of this interest in finality, however, it may be useful to turn to value (4), i.e., the defendant’s "valued right to have his trial completed by a particular tribunal.” Although the Court has never explored the nature of this valued right, there are several possible interpretations. One is that a defendant has a constitutional interest in having his case resolved by a tribunal that he perceives to be "favorably disposed to his *864fate.”[6] This suggestion finds no support in the Court’s decisions. Assume, for example, that a case, having been assigned to a judge whom the defendant considers favorable, is reassigned to another judge before the trial commences. Or assume that a juror whom the defendant perceives to be favorable is excused and replaced by an alternate juror for no compelling reason. Whatever else may be objectionable about such changes, they can hardly be said to violate double jeopardy. Accordingly, "the [defendant’s] interest in having his 'trial completed by a particular tribunal’ must refer to some interest other than retaining a fact-finder thought to be favorably disposed toward the defendant.”
Another meaning is more likely. A defendant has a valued right to have his trial completed by a particular tribunal, not because he has a constitutional interest in the identity of any particular tribunal, but because he has an interest in being able "to conclude his confrontation with society” once it has begun. Once a trial begins, a defendant has a legitimate interest in getting the trial over with "once and for all.” It follows, therefore, that he also has an interest in continuing with "the first jury” impaneled in the cáse because changing the jury means interrupting the trial. To that extent, the defendant’s interest in retaining the particular tribunal with which he began is merely an incident of his primary interest in being able to complete the trial itself. [Westen & Drubel, Toward a general theory of double jeopardy, 1978 Sup Ct R 81, 89-90.]
Contrary to the assumption of the lead opinion, *865in cases since Jorn, the Court has identified the primary interest protected as being able once and for all to conclude confrontation with the state. It is this interest, rather than the value of proceeding with the first tribunal, that is balanced against the public interest in one full and fair opportunity for presentation of the prosecutor’s evidence. See, generally, Illinois v Somerville, 410 US 458; 93 S Ct 1066; 35 L Ed 2d 425 (1973); Arizona v Washington, 434 US 497; 98 S Ct 824; 54 L Ed 2d 717 (1978).
Had the defendant objected to the mistrial and agreed to have the case transferred to another judge, and the prosecutor objected to the transfer, or any other alternative, see n 4 above, thereby causing a mistrial to be declared over the defendant’s objection, it might be more persuasively argued that defendant’s interest in final confrontation had been violated. However, Bellew’s interest in finality could have been served by transferring the case to a different judge. Defendant rejected that alternative, chose to abort the proceedings, and thus waived the opportunity to try the case to conclusion.
v
Ignoring the defendant’s request for mistrial, the lead opinion applies the manifest-necessity strand of jeopardy jurisprudence and states that the permissibility of a retrial is governed by the "rule . . . that trial judges must consider reasonable alternatives before declaring a mistrial.” Ante at 841. The opinion construes this rule, which actually concerns the availability of alternatives to a mistrial over the defendant’s objection, as a rule about the "exploration” of possibilities. On this basis, it concludes that retrial is barred, not be*866cause there were alternatives to a mistrial, but because the judge failed to "adequately explore” them, id. at 844:
At a minimum, the chief judge should have expressly raised the possibility of completing the trial before a different judge. Even after losing his "particular tribunal,” defendant may have opted to exercise his "lesser included” interest in finality, and chosen to continue the trial before another factfinder, preserving any recorded testimony that he perceived to be favorable. [Id. at 843.]
The lead opinion’s emphasis on "adequate exploration” is based on a misunderstanding of United States v Sartori, 730 F2d 973 (CA 4, 1984), and fails to acknowledge that the Supreme Court has, in analogous contexts, rejected the contention that a declaration of mistrial must be the least drastic available remedy to constitute "manifest necessity.” In Sartori, the trial judge abruptly recused himself in the midst of a jury trial over the objection of both parties and sua sponte declared a mistrial. A different district judge ruled that the mistrial did not lift the bar to double jeopardy, and the court of appeals affirmed. The court held that it had not been manifestly necessary to declare a mistrial over the defendant’s objection because the judge who declared the mistrial had an available alternative—assigning the case to another judge.
Sartori actually stands for the proposition that a mistrial should not be declared because of the disability of a judge presiding over a jury trial when the defendant objects to the mistrial and it can be avoided by substituting another presiding *867judge.7 The lead opinion’s statement that substitution was precluded in the absence of consent ignores the fact that, unlike defendant Sartori, who objected to the mistrial, defendant Bellew requested a mistrial. Likewise, assuming arguendo that Judge Roberson had to explore alternatives, the defendant declined a different judge and insisted on a mistrial.
The assumption that, as a matter of law, manifest necessity requires the exploration of less drastic alternatives to mistrial also ignores that the United States Supreme Court has specifically rejected the proposition that all other alternatives to a mistrial must be explored on the record in the context of a mistrial triggered by the possibility of bias. In Arizona v Washington, 434 US 511, 516-517, the Court held that the record did not have to reflect the exploration and rejection of all available alternatives so as to establish the necessity for mistrial.
In Washington, the trial judge granted the prosecutor’s motion for mistrial after defense counsel made improper prejudicial arguments during his opening statement. Id. at 499-501. Rejecting the argument that the mistrial was not necessary because the judge could have given cautionary instructions to the jury, Justice Stevens explained that "the key word 'necessity’ cannot be interpreted literally,” but that there are degrees of necessity that vary depending on the circumstances. Id. at 506. The highest degree of necessity *868"is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence . . . Id. at 508.
At the other end of the spectrum, however, are cases where mistrial is triggered by the possibility that the factfinder may be prejudiced. Id. at 510. The Court observed that when the difficulty leading to mistrial is the possible bias of the factfinder, the trial court’s determination is entitled to great deference from the reviewing court. Although the mistrial was not strictly and literally necessary because "some trial judges might have proceeded with the trial after giving the jury appropriate, cautionary instructions,” the Court held that the bar to double jeopardy was lifted because of the "overriding interest in the evenhanded administration of justice . . . .” Id. at 511. The Court summarized its reasoning this way:
Neither party has a right to have his case decided by a jury which may be tainted by bias; in these circumstances, "the public’s interest in fair trials designed to end in just judgements” must prevail over the defendant’s "valued right” to have his trial concluded before the first jury impaneled. [Arizona v Washington, 434 US 516.]
Washington illustrates that the focus of inquiry is not the factfinder’s actual capacity to be fair to the prosecutor, but the decision to grant the defendant’s request,8 Ante at 843-844. Whether Judge *869Curtis erred or not is not the proper focus of inquiry even under the manifest-necessity strand of double jeopardy. The inquiry is whether the mistrial was necessary. When possible bias is the triggering event, the declaration of necessity is within the trial court’s discretion, and "the highest degree of respect” to the declaration of mistrial is accorded on review.
Judge Curtis stated that she was recusing herself "[t]o insure that each of the sides in this particular litigation feels that their rights are protected and that impartiality is assured . . . .” While disqualification is not a step to be lightly taken, particularly when jeopardy has attached, neither Judge Curtis nor Judge Roberson was obligated to justify her recusation on the basis of the appearance of impropriety by requiring her to prove that she had a financial interest that would in fact make her partial. Assuming the applicability of the manifest necessity standard, as in Washington, "the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation . . . .” 434 US 511.
vi
The approach adopted by the lead opinion presents the obvious potential for unwarranted expansion of double jeopardy claims. Moreover, to the *870extent it is based on a perceived need to discourage unwarranted recusations, it is misguided.
The lead opinion’s struggle with applicable authority to reach the explicit conclusion that defendant had a right to have Judge Curtis serve as his particular tribunal is based on the unexpressed premise that to permit a judge to recuse herself from a bench trial after jeopardy attaches would invite corruption. Yet the foreordained result of the lead opinion’s conclusion that the defendant’s interest in continuing with the particular fact-finder is superior to his interest in finality is that the defendant must go free.
While trial judges should be wary of recusing themselves on the basis of a cynical perception of judicial integrity, we should be equally loath to discourage recusal on the basis of a good-faith belief that the circumstances are such that any ultimate verdict would be compromised. A decision that tells trial courts that, despite such a possibility, the trial must be completed on pain of the defendant going free, discourages the honest expression of reservations. Given that the interest in finality could have been accommodated, tolerating rare instances of disqualification far better serves society than repressing judicial candor, issuing compromised decisions, or turning defendants free.
CONCLUSION
For the foregoing reasons, I would reverse the decision of the Court of Appeals and remand the case to Detroit Recorder’s Court for trial.
Riley, J., concurred with Boyle, J.1 am not participating in Hicks, but I believe that defendant’s refusal to consent to any alternative was the "functional equivalent” of a request for a mistrial.
Ante at 831, n 19.
See, e.g., Dinitz, 424 US 607 (“ 'a motion by the defendant for a mistrial’ ”); id. at 608 ("mistrials granted at the defendant’s request or *858with his consent”). The Supreme Court appears to use "consent” in a very different manner than the lead opinion: to refer to mistrials not requested by the defendant, but only acquiesced to.
In part, the court stated the following:
To treat mistrial motions as waivers of double jeopardy protection would be to require among other things that it be established that the defendant himself concurred in such motions, fully comprehending all his alternatives. . . . Defendant would thus be protected from multiple prosecutions brought about not by the government but by the errors or misjudgments of his own counsel. We think this goes too far .... [Id. at 306.]
This is not to say that judges are interchangeable for the purposes of bench trials. Certainly one reason the court rule requires the parties’ consent before changing judges is that the initial decision to waive a jury trial would depend to some degree on the identity of the judge. This consideration may have prompted Judge Boyle’s offer to defendant Hicks of the additional alternative of a jury trial before him.
Jorn, supra, 400 US 486. The lead opinion quotes Jom in an attempt to document its assertion that the argument by Professors Westen and Drubel "conflicts with language ... in Jom.” The above-referenced quotation, however, is from Jom, which was a plurality opinion. Moreover, as subsequent authority confirms, defendant does not have a right to object to a mistrial and claim jeopardy preclusion unless the cause of the mistrial is one that could be manipulated to abort a proceeding that is not going favorably to the prosecution. See Arizona v Washington, 434 US 497; 98 S Ct 824; 54 L Ed 2d 717 (1978).
See FR Crim P 25(a):
If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the trial.
Where the manifest-necessity test properly applies, only the mistrial, and not the events giving rise to it, must be necessary:
[T]he double jeopardy clause does not require "manifest necessity” for the events that triggered the mistrial; manifest necessity for the mistrial itself will ordinarily permit a second trial. See Illinois v Somerville, 410 US 458; 93 S Ct 1066; 35 L Ed 2d 425 (1973); Arizona v Washington, 434 US 497; 98 S Ct 824; 54 L Ed 2d 717 (1978). If Pavlovic’s perspective were *869correct, mistrials caused by prosecutorial or judicial errors could never be followed by second trials, because it is never manifestly necessary to make a mistake. Yet Somerville held that a prosecutor’s blunder in drafting an indictment supplied manifest necessity for a mistrial. See also Lee v United States, 432 US 23, 33-34; 97 S Ct 2141; 53 L Ed 2d 80 (1977). Often the blunder escapes notice until the trial is over, yet a reversal may be followed by a second trial. See Burks v United States, 437 US 1, 12-15; 98 S Ct 2141; 57 L Ed 2d 1 (1978). If the proceeding is doomed to be reversed, it may be stopped short. [United States v Buljubasic, 808 F2d 1260, 1265 (CA 7, 1987).]