799 N.W.2d 355
N.D.2011Background
- Day was charged with driving under the influence in April 2010 and proceeded to a jury trial in February 2011.
- During trial, after a recess, the court observed possible communication between the bailiff, jurors, and Day, prompting a mistrial request by the State.
- The trial court granted the mistrial after considering the communications and excused the jury.
- On March 10, 2011, Day moved to dismiss the complaint on double jeopardy grounds; the trial court denied the motion in April 2011.
- The issue before the court is whether retrial is barred by the Double Jeopardy Clause given the mistrial.
- The North Dakota Supreme Court granted a supervisory writ and held retrial is barred; the complaint must be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the mistrial properly warranted? | Day | State | Not manifestly necessary; improper consideration of alternatives |
| Does double jeopardy bar retrial after mistrial? | Day | State | Retrial barred; double jeopardy applies once jeopardy attached |
| Is supervisory writ appropriate to direct dismissal? | Day | State | Writ granted; order to dismiss the complaint entered |
Key Cases Cited
- State v. Voigt, 2007 ND 100 (ND) (manifest necessity; Ends of public justice; standard for mistrial review)
- Linghor, 2004 ND 224 (ND) (jeopardy attaches at empanelment; retrial analysis governs after mistrial)
- United States v. Jorn, 400 U.S. 470 (U.S.) (Perez doctrine; manifest necessity and ends of public justice)
- United States v. Keene, 287 F.3d 229 (1st Cir. 2002) (nonexclusive factors for considering mistrial necessity)
- Abney v. United States, 431 U.S. 651 (U.S.) (Double Jeopardy protections rationale and necessity)
- Roe v. Rothe-Seeger, 2000 ND 63 (ND) (supervisory writs discretion and caution)