During petitioner's trial, after selection of the jury and presentation of a substantial amount of the prosecution's evidence, the Assistant U.S. Attorney in charge of the prosecution revealed that among his papers was a highly significant police report which had not been disclosed to the defense. The report noted that immediately after the offense another person, whose precise identity was not known, had been boasting in a neighborhood bar that he had committed the crime. This lead had been only superficially investigated and obviously could not be run down when it surfaced at trial.
Petitioner moved to dismiss, claiming he was entitled to pretrial disclosure of the report under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The trial court declared a mistrial over defendant's objection, finding "manifest necessity." Much later the Court dismissed the indictment when the lead indicated by the police report was found too stale to be productive. At all stages the trial judge acted conscientiously, after thorough hearing, to protect what he perceived to be the interests of the defendant. He was fully aware of the potential double jeopardy problem.
The District of Columbia Court of Appeals ruled that the police report was not covered by Brady and approved a second trial. Whether or not this determination is correct, resolution of the Brady issue is not necessary or particularly relevant to the determination of the present petition.
A trial judge may not declare a mistrial over defendant's objections unless mistrial is a "manifest necessity" to meet the "ends of public justice." United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 1079, 47 L. Ed. 2d 267 (1976), and cases cited therein. The mistrial was wholly unnecessary in this instance. Manifest necessity arises only where continuation of a trial becomes useless, that is to say, when it is apparent that the result can be upset "at will" by a party on appeal.* Illinois v. Somerville, 410 U.S. 458, 471, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). This has occurred in essentially two situations: (1) where "an impartial verdict cannot be reached" (e.g., juror served on grand jury, Thompson v. United States, 155 U.S. 271, 15 S. Ct. 73, 39 L. Ed. 146 (1894); juror acquainted with defendant, Simmons v. United States, 142 U.S. 148, 12 S. Ct. 171, 35 L. Ed. 968 (1891)), or (2) an obvious procedural error makes reversal on appeal a certainty. Illinois v. Sommerville, supra, 410 U.S. at 464, 93 S. Ct. 1066, 35 L. Ed. 2d 425. Failure of the prosecution to disclose relevant discoverable material does not create manifest necessity for mistrial over defendant's objection. When difficulties arise in the course of a trial involving unexpected developments due to the absence of witnesses, or unexpected evidence, it is the defendant's option whether to ask for mistrial. Failing such consent, the trial must proceed and if it results in conviction rather than acquittal, the question of possible error can be reviewed post-trial both by the trial judge and on appeal. If, in fact, the error goes to the validity of the conviction, retrial will be ordered. A trial judge simply cannot abort a trial mid-stream over the defendant's objection because a resulting conviction may be reversed. This would devalue defendant's right to final adjudication before a particular tribunal. United States v. Jorn, supra.
The Government argues that the manifest necessity standard should not apply in this case. It maintains that by requesting dismissal the defendant consented to the lesser ruling of mistrial as well. It is clear from the record that in asking for dismissal the defendant was seeking a termination of all proceedings against him. He objected to a mistrial precisely because it would not lead to such a final termination. The contention that the request for dismissal necessarily included a request for mistrial has no merit.
In the present situation it is clear that defendant objected to mistrial and stated that if a mistrial were declared the double jeopardy issue would be raised. The trial judge's justifiable concern that the prosecution had apparently withheld crucial information, although not maliciously, is understandable. Other remedies existed and it was not proper to abort the trial by terminating it over defendant's objection. There was no manifest necessity. The second trial shall not take place. The writ shall issue and the defendant shall be released.
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