The Sound Discretion of Manifest Necessity

The Supremes will hear oral argument today in Renico v. Lett, a chance to make sense of their predecessors’ decision in United States v. Perez, issued in 1824 BC.  The “BC” stands for Before Computers, a time when words were chosen carefully because brevity was at a premium.  It was far harder to write an opinion then, because it involved actually writing. You know, with your hand and a pen.  Not a Bic pen either.  Not even a Mont Blanc.

The decision in Perez is one paragraph.  A long paragraph, but still only a paragraph.  And it held that the Double Jeopardy Clause of the 5th Amendment doesn’t mean what it says.  Perez held that a person could indeed be put in jeopardy twice, provided the earlier trial was terminated for manifest necessity, whatever that means, as decided by a judge using sound discretion.  This is meant to distinguish between those judges who use unsound discretion.

It never even occurred to the Perez court that a hung jury constituted a failure to convict, or that lack of a conviction meant that the prosecution’s case failed to persuade a jury of twelve of guilt.  That could have been the end of it, had the Perez court so held.  Fail to convict, whether because of acquittal, the affirmative finding of a jury that the prosecution failed to sustain its burden of proof, or fail to convict because a unanimous verdict couldn’t be achieved, constituted the prosecution’s one shot.  The Double Jeopardy Clause means no second try.  There are no Mulligans in the courtroom.

Of course, Perez didn’t go that way.  A hung jury is nothing.  So what if the evidence failed to persuade twelve good men and true of guilt.  So what if the verdict of guilt had to be unanimous.  It would be different if they unanimously found the defendant innocent.  Oops.  That’s not what juries do.  But so what. 

Having long ago gotten past the hung jury question, the question today is whether a judge, without conferring with counsel, hearing argument, an Allen charge and on only the most cursory information, exercises sound discretion in declaring a mistrial.  Jeff Gamso describes the details:




The judge brought the jury into the courtroom. Now, from the transcript.



THE COURT: I don’t want to know what your verdict might be, or how the split is, or any of that. Thank you. Okay? Are you going to reach a unanimous verdict, or not?

THE FOREPERSON: (No response)

THE COURT: Yes or no?

THE FOREPERSON: No, Judge


And the judge immediately declared a mistrial. Lett was tried again and convicted. The Michigan courts figured that there was that old manifest necessity for a mistrial. The federal courts disagreed. The trial judge just hadn’t really made sure the jury was deadlocked. And since the judge hadn’t, calling the mistrial was premature. The judge wasn’t cautious. The case wasn’t plain and obvious. No manifest necessity.
There’s a bit of a conundrum here.  Generally, defendant’s hate an Allen charge, where the court tries to coerce the jury to return to deliberations and force a verdict.  It requires the holdouts to give up their heartfelt belief, whichever way they go, and acquiesce to the will of the majority in order to get the heck out of the jury room and return to the bosom of their family.  The defendant is almost always on the south side of a jury heading north after the Allen charge.

But judges usually do everything in their power to get a verdict, saving the state the time and money of retrial.  Some judges have a rule of thumb that they don’t take a jury’s claim of deadlock seriously until the third note.  Hope springs eternal, and lack of food and sleep helps.

In Renico v. Lett, the judge jumped the gun on declaring a mistrial over the hung jury, rushing off the bench before the foreperson’s “no” stopped echoing in the courtroom.  No chance for defense counsel to argue against the mistrial, which inures to his benefit since he would, in all likelihood, have been on the side of begging the judge to let the jury go.  Since he was denied the opportunity to take a side, he can now argue before the Supremes that he was denied the right to have this jury decide his fate.

There really doesn’t seem to be much of a question as to whether the judge rushed the mistrial, based on how judges usually bend over backward to avoid a mistrial.  After the Allen charge, the deadlocked jury returns its verdict, usually guilty as sin.  Then it’s the defense arguing that the judge was improvident in not declaring a mistrial at the first opportunity, coercing the jury to convict by instructing the holdout(s) to listen to the majority, hear their arguments, consider them, then do their duty and convict the defendant.  The soundness of discretion looks different according to what side of the verdict you’re on.

The problem with this case is that Renico v. Lett may not be the appeal we really want to win, The case we want to win is Perez, the one that screwed up the Double Jeopardy Clause in the first place.  Unfortunately, it’s unlikely that we will ever get a Mulligan on that one.