The opinion of the court was delivered by: OLIVER GASCH
On the 5th of August, 1991, the defendant, Jason Ligon, moved to dismiss his indictment for possession with intent to distribute 50 grams or more of a controlled substance on the ground that retrial is barred by the fifth amendment to the United States Constitution which provides, in part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V, § 2.
The defendant was arrested on September 17, 1990, after he was found at the Greyhound Bus Station here in Washington with approximately 89 grams of "crack" cocaine in his trousers. He was later charged by a federal grand jury with possession with intent to distribute 50 grams or more of a mixture and substance containing cocaine base, in violation of Title 21 U.S.C. §§ 841(a), 841(b)(1)(A)(iii).
On June 11, 1991 the defendant was tried again before Judge Gasch. After three and one-half days of trial ("Trial 2"), the jury was charged on Friday afternoon, June 14, 1991, and instructed to return to commence deliberations on Monday, June 17, 1991.
The jury started deliberating at about 10:00 a.m. on June 17th and continued until 4:35 p.m. Six notes were sent out to the judge. Three of the notes asked substantive questions about the case. The first, at 10:15 a.m., asked for a transcript of the trial. The second note was sent out at 10:56 a.m. which asked: 1) for the identity of the senior officer on duty during the defendant's arrest and 2) what constitutes illegal search and seizure. The Court instructed in response to this second note at 1:15 p.m. and the jury continued its deliberations at 1:30 p.m. The third note requested an instruction on an inconsistency between the evidence presented and the evidence contained in a preliminary hearing transcript. The Court responded by reading the instruction on inconsistent testimony and credibility of witnesses. The jury continued deliberating at 2:45 p.m.
The record does not reflect precisely when the final note was sent out or received by the Court. It read: "The jury is unable to reach a decision (unanimous)."
Thereupon, the jury was called into open court at 4:35 p.m. at which time the Court engaged in a colloquy with the foreperson as follows:
THE COURT: I understand that the jury has been unable to reach a unanimous verdict. Is that still the picture?
JURY FOREPERSON: [Standing] Yes.
THE COURT: Do you think that any further deliberations would be helpful?
THE COURT: It is with regret the Court will declare a mistrial and discharge the jury.
Transcript of Proceedings before Judge Oliver Gasch, dated June 17, 1991, transcribed by Vernell A. Marshall, 8-9.
After announcing that a mistrial would be declared, at the request of defense counsel the Court addressed the issue of whether respective counsel would be permitted to interview the jury. Id. at 9. The Court then discharged the jury. At no time during the events stated did the defendant object to the declaration of a mistrial or to the discharge of the jury. Defense counsel moved that defendant be released on bond pending retrial. This motion was denied. The Court sought to ascertain the availability of counsel for retrial. Counsel were not available until August.
The case was reassigned to Judge Flannery for trial on August 5th whereupon this motion was filed. It was then reassigned to Judge Gasch for a decision on this motion.
Coercion of the jury is a matter that is the concern of every trial judge. This Court well recalls the en banc decision in United States v. Thomas, 449 F.2d 1177, 146 U.S. App. D.C. 101 (D.C. Cir. 1971). In Thomas, convictions for assault with a dangerous weapon and robbery were reversed by the Court of Appeals in part because of what the trial judge had said to the jury late in the day after only one hour of deliberation and a note saying that they could not "come to an agreement." Over the defendant's objection, the Court made it known, outside the jury's hearing, that a mistrial was not going to be declared. The Court then said to the jury:
I am sure you ladies and gentlemen know we have a substantial backlog of work, and to spend another day before another jury retrying this case just doesn't make sense to me. See if you can't decide and come to a verdict, think about it overnight individually. . . .
If such a well-intentioned instruction was held to be coercive, naturally trial judges are going to be less inclined to encourage juries to reach an agreement. The obvious difficulty with the mistrial is that an accused has an interest in being tried by a particular tribunal. Wade v. Hunter, 336 U.S. 684, 93 L. Ed. 974, 69 S. Ct. 834 (1949), Gori v. United States, 367 U.S. 364, 6 L. Ed. 2d 901, 81 S. Ct. 1523 (1961), and United States v. Jorn, 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, 27 A.F.T.R.2d (P-H) 552 (1971). And so it is with this motion that this important interest needs to be balanced with the interest of public justice in a prompt and just disposition of the case.
For more than 160 years it has been well settled that a trial judge should not terminate a trial prior to obtaining a verdict unless there is a "manifest necessity" to do so. United States v. Perez, 22 U.S. 579, 580, 6 L. Ed. 165 (1824). The failure of a jury to reach a verdict is equally well settled as the paradigmatic example of what constitutes "manifest ...