If I Get a Mistrial in Massachusetts Because of My Lawyer’s Misconduct, Can I Be Retried?

The Massachusetts Supreme Judicial Court today rejected a criminal defendant’s argument that the Commonwealth should not be permitted to retry him after his first trial ended in a mistrial as a result of his attorney’s misconduct.  The name of the case is Commonwealth v. Bryan. 

The defendant was indicted and charged with illegally carrying a firearm after Boston cops found him in a van with a gun in April of 2014.  The police stopped the van in Mattapan for driving without headlights.  There were two men in the front seat and the defendant was the sole back seat passenger.  Neither the defendant nor the driver had criminal records, but the front seat passenger had been previously convicted of a gun charge.  During the traffic stop, two bouncers from a nearby bar approached the police and said someone told them one of the passengers in the van had a gun.  As a result, the cops decided to remove all the occupants from the vehicle.  When the defendant got up, the police saw a gun underneath his thigh.  Prior to trial, the defendant filed a motion to suppress, arguing the police had no constitutional authority to order him to get out of the van.  A superior court judge conducted a hearing and concluded the exit order was justified to ensure the safety of the officers.

Prior to trial, the prosecutor filed a motion in limine to prohibit the defendant’s attorney from eliciting information that the front seat passenger had previously been convicted of a gun offense.  The prosecutor argued such evidence would be irrelevant and would likely confuse the jury.  The judge agreed with the prosecutor and ordered the defense attorney not to ask questions about the passenger’s criminal record.  However, during the testimony of the very first police witness, the defendant’s attorney asked about the nature of the passenger’s prior conviction.  The prosecutor repeatedly objected to defense counsel’s questions and the judge repeatedly sustained the objections.  At one point, the judge called the attorneys to the sidebar and the defense attorney argued the jury should be allowed to hear about the passenger’s gun conviction.  The judge disagreed and very clearly told the defense attorney he could not inquire about it.  Immediately thereafter, the defense attorney asked the witness whether the front seat passenger had been convicted of illegally possessing a firearm and the witness confirmed that he had.  The judge dismissed the jury and the prosecutor requested that the judge declare a mistrial.  When the judge asked the defendant’s attorney to explain why he had blatantly violated a court order, his only response was that the evidence should have been admissible.  The judge declared a mistrial, stating that the defendant’s attorney had “wasted everyone’s time.”

When the Commonwealth stated its intention to place the defendant on trial again, he appealed and argued a new trial would violate his double jeopardy rights.  It is unconstitutional to place a criminal defendant in jeopardy (on trial) twice for the same crime.  Therefore, if a mistrial is declared over the defendant’s objection (as happened here), a defendant may not be retried unless the judge in the first trial correctly determined there was a “manifest necessity” to declare a mistrial.  The question here was whether the trial judge had less severe alternatives to remedy the defense attorney’s inappropriate conduct than a mistrial.  The SJC ultimately concluded that the trial judge had appropriately considered all her options and determined there was nothing she could have done to undo the damage caused by the defense attorney.  The Court said allowing the defense attorney to “pollute the atmosphere of a trial and then turn this to his own advantage on appeal” would not be in the interest of justice, and accordingly, it is appropriate to allow the defendant to be retried.