On December 31, 2020, a three-judge appellate panel decided the Bergen County case of State v. Adrienne Smith. The principal issue under N.J.S.A. 2C:1-9 was whether the defendant’s double jeopardy rights were violated when a mistrial was declared due to the Covid-19 pandemic.
Presiding Judge Fasciale wrote for the Court in relevant part: Throughout this period, New Jersey courts have continued to sustain court operations to the greatest extent possible. At no point did our Court order that all motions, including motions for a mistrial, were suspended and thus the judge’s authority was not circumscribed. In fact, in its latest order dated November 16, 2020, our Court suspended in-person jury trials, but not all court operations, and specifically provided that judges “in any individual matter consistent with Rule 1:1-2(a) ” could “suspend proceedings, extend discovery or other deadlines, or otherwise accommodate the legitimate needs of parties, attorneys, and others in the interests of justice.” See November 16, 2020 Suspension 6. Thus, the judge had the authority to declare a mistrial in a case that had been suspended on March 17, 2020, and that had not resumed seven months later due to the pandemic.
To summarize, we conclude that the judge did not abuse his discretion by determining the extraordinarily unique circumstances of this case created a manifest necessity for a mistrial, and by holding “the ends of justice cannot be achieved without aborting the trial.” An entirely “unexpected, untoward and undesigned incident or circumstance” arose in the form of the COVID-19 pandemic that did “not bespeak bad faith, inexcusable neglect or inadvertence or oppressive conduct on the part of the State, but which in the considered judgment of the trial judge created an urgent need to discontinue the trial in order to safeguard the defendant against real or apparent prejudice.” As in Farmer, there was no doubt that the judge’s primary motive for declaring the mistrial was his sincere effort to protect defendants. Id. at 175. And that is exactly what the judge did here. Thus, double jeopardy would not be violated by a retrial because, under N.J.S.A. 2C:1-9(d)(3), the termination was “required by a sufficient legal reason and a manifest or absolute or overriding necessity.”
This case presents an interesting dynamic in that the defense objected to the Court declaring a mistrial. At the same time, the appellate division cited the trial judge’s perceived need to protect the defendants as a basis for siding with the prosecution. Unfortunately for the defendants, the conviction rate is much higher for retrials than it is for initial trials. This is due in large part to the fact that the prosecution will have a preview of the defense strategy from the first trial at the time of the re-trial. The prosecution will therefore have much more time to undermine that strategy.