Did trial violate the Double Jeopardy Clause?

In a case that asks whether a state criminal trial judge properly declared a mistrial, the justices of the U.S. Supreme Court spent as much time questioning each other as they did the attorneys before them.

Renico v. Lett concerns the trial of Reginald Lett, who was charged with first-degree murder and possession of a firearm after allegedly fatally shooting a Detroit cab driver.

After roughly 10 hours of testimony, the case went to the jury at the end of the fourth day. Early the next day the jury sent a note to the trial judge indicating “concern about our voice levels disturbing other proceedings that might be going on.”

A few hours later the jury sent another note, which read “What if we don’t agree?” and asked if the result would be a mistrial, a retrial “or what?”

The judge then brought in the jury and questioned the foreperson.

“Do you believe you are hopelessly deadlocked?” the judge asked.

“The majority of us don’t believe that …” the foreperson began before being cut off by the judge.

“I don’t want to know what your verdict might be, or what the split is, or any of that,” the judge said. “OK?

Are you going to reach a unanimous verdict or not?”

The foreperson didn’t respond.

“Yes or no?” the judge asked.

“No, Judge,” the foreperson said.

“All right. I hereby declare a mistrial,” the judge said.

Lett later was retried and convicted of second-degree murder and a gun charge, but the Michigan Court of Appeals reversed, holding that the first judge abused her discretion in declaring the jury deadlocked.

The second trial, therefore, violated the Double Jeopardy Clause.

The Michigan Supreme Court reversed. Citing an 1824 U.S. Supreme Court case, U.S. v. Perez, which held that a mistrial and retrial do not violate a defendant’s Double Jeopardy rights when the mistrial was declared based on “manifest necessity,” the court held that manifest necessity existed here based on the jury’s notes and statements.

Lett filed a habeas petition, and a federal district court reversed again, holding that the state court unreasonably misapplied Supreme Court precedent.

The Sixth Circuit affirmed.

The Supreme Court granted the state’s petition for certiorari.

Manifest necessity?

During oral arguments on Monday, Michigan Assistant Attorney General Joel D. McGormley argued the federal courts failed to give the Michigan state trial court and state Supreme Court the deference they were owed.

“The Sixth Circuit second-guessed on habeas,” McGormley said.

But Justice Ruth Bader Ginsburg pointed out that the foreperson didn’t respond right away when asked if the jury was deadlocked, calling the juror’s ultimate response “a reluctant ‘no.’”

Justice Antonin Scalia disagreed. “She might have been sneezing,” Justice Scalia said. “We don’t know what caused the pause, do we?”

“The trial court is the one who views the jury in real time,” McGormley noted.

Justice Antony Kennedy asked if, as a practical matter, judges usually talk to counsel before declaring a mistrial.

“I just want to understand how it works,” Justice Kennedy said.

“I believe discussion with counsel is a factor” courts consider in determining whether “manifest necessity” exists, McGormley said.

“How big of a factor is it?” Justice Scalia asked. “What if both counsel say no? Can a judge declare a mistrial?”

“Absolutely,” McGormley said.

“Then it’s not a very big factor,” Justice Scalia said.

When Justice Stephen Breyer asked McGormley to name a case with “more extreme facts” in which declaration of a mistrial was upheld, Justice Scalia jumped in.

“Is it your burden to answer that question?” he asked. “Or is it up to the other side to show it is not in the mainstream?”

“It is [Lett’s] burden,” McGormley said.

But Justice Kennedy still wondered if the “manifest necessity” standard had been met based on the notes the jury submitted.

“It could have been that all the jurors agreed on the murder count, and disagreed on the firearm count [so] they were closer than they appeared to be,” Justice Kennedy said.

Judge acted ‘hastily?’

Marla R. McCowan, the Detroit Assistant Defender appointed by the Court to represent Lett, argued that the jurors had no opportunity to explain their position before the judge ended their role in the case.

“The judge extracted an answer from the foreperson and then immediately declared a mistrial,” McCowan argued.

Justice Ginsburg tried to cut to the heart of the issue.

“Everyone agrees on what the law is,” she said. “If there was a deadlock, then there was no abuse of discretion” by the trial court.

But Justice John Paul Stevens didn’t agree.

“Isn’t the legal issue if there was manifest necessity?” he asked.

“Precisely,” McCowan said.

“I don’t think the test is whether they’re deadlocked,” Justice Stevens said.

When asked about the first note indicating infighting among the jurors, McCowan said: “I don’t think we can take that note at anything other than face value.”

“The judge did not exercise sound discretion,” he added.

Chief Justice John G. Roberts Jr. wasn’t so sure.

“She used discretion,” he said. “She looked at the notes; she asked questions.”

“She acted hastily and precipitously without regard to my client’s rights,” McCowan replied.

When Justice Stevens observed that “the foreperson answered for herself, not for the jury,” Chief Justice Roberts jumped in.

“How can you say she answered for herself?” Chief Justice Roberts asked. “She can’t come to a verdict by herself. She answered for the jury.”

Then Justice Scalia jumped in: “Is it a requirement that the trial judge poll the jury?”

“It is not a requirement,” McCowan said. “But she should have been more deliberate in attempting to find out where the jury was.”

A decision is expected later this term.