APPEAL FROM THE SUPERIOR COURT, BROOK HEDGE, J.
Before Farrell, King, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge:
These nine defendants appeal from their convictions on retrial for unlawful entry and the preceding denial of their motions to dismiss on double jeopardy grounds. The retrial was occasioned because the judge at the first trial declared a mistrial on grounds of "manifest necessity." *fn1 The judge did so after the defendants' jointly-retained attorney failed to appear in court to give closing argument, conduct which the judge had foreseen as the likely culmination of extreme emotional distress the attorney had exhibited over the previous two days. At the time the judge ordered a mistrial the defendants, as a practical matter, were unrepresented by [709 A2d Page 1169]
counsel. The judge did not appoint substitute counsel to advise them of their options, and did not inquire of them, individually or collectively, whether they wanted a mistrial or instead wished to proceed to verdict despite the limitations imposed by their attorney's effective withdrawal from the case.
We appreciate the quandary in which the trial judge found herself near the end of a nine-day trial, and we do not question her good faith in believing that only a mistrial could insure the defendants a trial in which they were represented effectively by counsel through the critical stage of closing argument. We nonetheless are compelled to hold that the judge, by essentially leaving the defendants out of the mistrial decision in a case where the paramount if not sole prejudice affecting the proceedings was to the defendants themselves, failed to exercise the sound discretion double jeopardy requires before a mistrial may be ordered on grounds of manifest necessity. Retrial of the defendants, therefore, was barred by double jeopardy.
Appellants' joint trial for unlawful entry began on September 20, 1993. They were represented by a single retained counsel. Over the next week the government presented testimony by officials of the Cameroon Embassy *fn2 and United States Secret Service officers regarding the circumstances of the defendants' entry of the embassy on October 27, 1992. In each case defense counsel cross-examined the witnesses with a view toward establishing, inter alia, a defense that the defendants reasonably believed they had been allowed entry. At a later point the trial judge remarked that counsel's cross-examination and presentation of the case generally "was perfectly adequate."
On the morning of September 27, 1993, before the case was called, defense counsel approached the bench and asked permission to withdraw from the case. Somewhat vaguely, she referred to "a conflict between myself and my clients" stemming from certain (unidentified) things they had not told her which had led her to think "this was one type of case when actually it's another." Counsel further confessed to having misrepresented her "working knowledge of French" and previous trial experience, stating that this was her first jury trial:
I got in over my head; and, as the case unfolded, I saw that there were multiple defenses that arose that I did not know about prior to the commencement of this trial.
I also have a hard time making my clients understand that we have different rules and I am being stressed out.
I was in over my head. I needed somebody to assist me so that I could follow the testimony; because I realize that that was part of the downfall I was having in doing so throughout the course of this trial. I just — I just can't go forward on this. There's no way.
The judge replied that "it's a fairly straightforward case at bottom, even though [there are] nine co-defendants," and that "regardless of what you've done so far, I don't know that it's been ineffective. . . . I don't think there's ineffective assistance of counsel." Observing that counsel was accompanied at the moment by an attorney from the Public Defender Service, the judge suggested that counsel might be suffering from "the jitters of a first trial" and should talk to this counsel and those who were advising her. Later the court accepted the PDS attorney's suggestion that the case be continued overnight so counsel could confer with her clients and "just collect herself."
The next day one of the defendants, Nicholas Vega, testified on direct examination and was cross-examined. After a lunch recess and out of the jury's presence, defense counsel told the judge that "my clients are dissatisfied in some way with the way things have been proceeding." Noticing that one defendant was shaking his head "no" to this remark, the judge inquired of each defendant whether he was satisfied with counsel's representation; all responded affirmatively, only one claiming that counsel's assertion of a rift [709 A2d Page 1170]
was "taking me by total surprise" and that he needed time out for her "to enlighten me on why she thinks that we are not satisfied." After a recess counsel returned and again voiced her concern that the defendants were "suggest[ing] that perhaps I'm not myself, that I didn't put forth my best effort." The judge again asked the defendants if they were satisfied with counsel's services, and all answered "yes." During the ensuing discussion ...