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Md. high court: Double jeopardy applies to too-quick mistrial declaration

Court of Appeals Judge Joseph M. Getty, the newest member of the Court of Appeals, during his investiture in June in Annapolis. Getty has been a lobbyist and legislative policy advisors for the last two Republican governors and a state legislator but says he has no jitters starting his new role. ‘I think my background has prepared me for the types of things that will come before the court,’ he says. ‘I feel very confident.’ (Maximilian Franz/The Daily Record)

A mistrial in a Cecil County man’s criminal case was not a ‘manifest necessity,’ meaning he cannot be retried for the same crimes, Court of Appeals Judge Joseph M. Getty wrote in an opinion last week. ‘The circuit court and the state failed to include sufficient consideration of adequate alternatives on the record, and any doubt must be resolved in favor of the defendant,’ he wrote.(Maximilian Franz/The Daily Record)

A judge’s too-quick declaration of a mistrial due to a potential conflict of interest between sibling lawyers bars the state from retrying a defendant charged with assault and illegal gun possession, a divided Maryland high court has ruled.

In its 5-2 decision, the Court of Appeals said the judge failed to adequately consider reasonable alternatives to mistrial after discovering the prosecutor was a brother of the public defender for one of the state’s witnesses.

That failure, coupled with rejecting defense counsel’s objection to a mistrial, means that a second trial for Andrew D. Baker is barred by the federal Constitution’s prohibition on being tried twice for the same offense, the Court of Appeals said.

Based on U.S. Supreme Court precedent, a mistrial can be declared without implicating the constitutional prohibition on double jeopardy only if the prosecution can demonstrate the mistrial was manifestly necessary, the Court of Appeals added.

The mistrial in Baker’s case was not a “manifest necessity” because reasonable alternatives were available but not adequately considered, the high court ruled, including finding a new prosecutor for Baker’s trial or a new defense attorney for the witness, Darrell Ellis.

“In summary, there exists ‘manifest necessity’ for a mistrial only if 1) there was a high degree of necessity for the mistrial; 2) the trial court engaged in the process of exploring reasonable alternatives to a mistrial and determined that none was available; and 3) no reasonable alternative to a mistrial was, in fact, available,” Judge Joseph M. Getty wrote for the majority. “The circuit court and the state failed to include sufficient consideration of adequate alternatives on the record, and any doubt must be resolved in favor of the defendant. Therefore, the circuit court abused its discretion in declaring a mistrial over Mr. Baker’s (lawyer’s) objection, and double jeopardy principles bar retrial on both the assault charges and the illegal firearm possession charges.”

In dissent, Chief Judge Mary Ellen Barbera derided as unduly burdensome on trial judges the requirement they state on the record their reason for rejecting alternatives to a mistrial.

“In short, although consideration of reasonable alternatives is part of the manifest necessity determination, a trial judge’s failure to exhaust and dictate on the record all of those alternatives, and its reasons for rejecting each alternative, should not render the declaration of a mistrial an abuse of discretion,” Barbera wrote in a dissent joined by Judge Sally D. Adkins.

“Neither this court, nor the Supreme Court, has ever required such express findings on the record,” Barbera added. “To increase the burden placed on our trial judges, in the midst of a trial and without the benefit of hindsight on appellate review, would render the trial judge a useless appendage in the judgmental process of determining whether a mistrial was manifestly necessary in the interest of public justice.”

The Maryland attorney general’s office said in a statement Friday that it has not decided if it will seek U.S. Supreme Court review of the Maryland high court’s interpretation of the federal Constitution’s Double Jeopardy Clause.

“We agree with the dissenting judges that a trial judge need not expressly consider and reject on the record every possible alternative to a mistrial in order to properly exercise his or her discretion,” the office stated. “We are reviewing the opinion to determine what, if any additional steps we will take.”

Todd M. Brooks, Baker’s appellate attorney, declined to comment on the Court of Appeals’ decision. Brooks is with Whiteford Taylor Preston LLP in Baltimore.

Elkton altercations

Baker was facing assault and illegal gun possession charges based on his alleged firing of shots at Ellis and his girlfriend on Jan. 13, 2015 in Elkton. Meanwhile, Ellis was facing charges of having assaulted Baker two days later.

Ellis was set to testify at Baker’s trial under a grant of immunity when presiding Cecil County Circuit Judge Brenda A. Sexton discovered – based on an inquiry initiated by Baker’s attorney – that the prosecutor, Cecil County Assistant State’s Attorney Karl Fockler, was the brother of Ellis’ public defender, E.B. Fockler.

Sexton declared a mistrial over defense counsel’s objection, saying, “I do not think that I can conduct a hearing and/or permit testimony of Mr. Ellis, accompanied by his attorney, being offered immunity when his attorney is the brother of the state’s attorney.”

Baker’s trial attorney, Michael J. Halter of Elkton, moved to dismiss the indictment, citing double jeopardy. Sexton rejected the motion, saying a mistrial was manifestly necessary because none of the alternatives was reasonable.

The intermediate Court of Special Appeals disagreed last August, saying Sexton had failed to articulate sufficiently the basis for concluding a mistrial was manifestly necessary. The state then sought review by the high court, which affirmed the Court of Special Appeals’.

Getty was joined in the majority opinion by Judges Clayton Greene Jr., Robert N. McDonald, Shirley M. Watts and Michele D. Hotten.

The case was State of Maryland v. Andrew Daniel Baker, No. 55 September 2016.

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