956 N.W.2d 412
N.D.2021Background
- Jordan Borland was charged with criminal vehicular homicide on October 17, 2017; three jury trials followed.
- First trial (Oct. 2, 2018) resulted in a guilty verdict, which Borland moved to set aside after discovering juror misconduct (an extraneous definition of "reasonable doubt"); the district court granted a new trial.
- Second trial (July 8, 2019) ended in a mistrial after the jury reported it could not reach a unanimous verdict; Borland moved for and obtained the mistrial.
- Third trial (Feb. 3, 2020) produced a guilty verdict and judgment; Borland had moved to dismiss on double jeopardy and speedy-trial grounds (Dec. 27, 2019) and proposed a jury instruction and special verdict form on whether jeopardy previously attached—both were denied.
- Borland appealed, arguing (1) double jeopardy barred retrial(s), (2) the court erred in refusing his double-jeopardy jury instruction and special verdict form, and (3) his Sixth Amendment/state speedy-trial rights were violated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy barred retrial after the first trial’s new-trial order and the second trial’s mistrial | Retrial permissible because the first verdict was set aside at defendant’s instance and the mistrial was not caused by prosecutorial conduct intended to provoke a mistrial | Retrial barred by double jeopardy; State used repeated trials to refine its case and gain advantage | Retrial not barred. When a conviction is set aside at defendant’s instance waiver occurs; under Oregon v. Kennedy retrial is permitted unless prosecution intended to "goad" defendant into mistrial. |
| Whether the court erred in denying Borland’s requested jury instruction and special verdict on prior attachment of jeopardy | Instruction unnecessary because double jeopardy did not apply as a matter of law | Jury should decide whether jeopardy had previously attached | No error—denial proper because double jeopardy was inapplicable under the facts and law. |
| Whether Borland’s right to a speedy trial was violated (Barker factors) | Delays resulted mainly from defendant’s successful motion for new trial and mistrial; State acted without bad faith; defendant did not timely assert the right and showed no actual prejudice | ~2-year delay from charge to final trial was presumptively prejudicial and defendant only asserted right shortly before third trial | No violation. Delay was presumptively prejudicial but Barker balancing favored State: reasons for delay not bad-faith, defendant waited to assert right, and defendant failed to show actual prejudice. |
Key Cases Cited
- 456 U.S. 667 (Oregon v. Kennedy) (prosecutorial conduct bars retrial only if intended to "goad" defendant into moving for mistrial)
- 407 U.S. 514 (Barker v. Wingo) (establishes four-factor speedy-trial balancing test)
- 457 U.S. 31 (Tibbs v. Florida) (double jeopardy does not bar retrial when defendant obtains reversal of conviction except when reversal was for insufficiency of the evidence)
- 938 N.W.2d 915 (City of W. Fargo v. Ekstrom) (jeopardy attaches when jury empaneled and sworn; adoption of Kennedy standard in ND)
- 886 N.W.2d 71 (State v. Peterson) (de novo review for constitutional issues)
- 711 N.W.2d 915 (State v. Moran) (Barker factors and speedy-trial analysis guidance)
- 241 N.W.2d 854 (State v. Erickson) (North Dakota’s adoption of Barker for state speedy-trial claims)