Can a judge stop my jury trial after it starts?

In Laster v. State 268 Ga. 172 (1997) the court observed: once the jury is impaneled and sworn, jeopardy attaches and the accused is entitled to have the trial proceed to an acquittal or conviction by the jury. The trial court may interrupt the proceedings and declare a mistrial over the defendant’s objection only if the prosecutor demonstrates manifest necessity for the mistrial. Manifest necessity exists when the accused’s right to have the trial completed by a particular tribunal subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. The classic example of a proper basis for mistrial is a trial judge’s belief that the jury is unable to reach a verdict; at the other extreme are the cases where the prosecutor seeks a mistrial to buttress weaknesses in the State’s evidence. When there is no prosecutorial misconduct, the trial court has broad discretion in deciding whether to grant a mistrial. When there is no prosecutorial misconduct, the failure of the State to timely secure evidence necessary to his case will not constitute manifest necessity, because the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. Jackson v. State 305 Ga. App. 727 (2010). This rule would not apply where the prosecution had properly subpoenaed a necessary witness who then fails to appear at trial. Julian v. State, 319 Ga. App. 808 (2013). The doctrine of manifest necessity means just what the name implies. “The decision to declare a mistrial is not to be undertaken lightly.” United States v. Starling, 571 F.2d 934 (5th Cir. 1978). The failure of the trial judge to consider adequately less severe alternatives to a mistrial shows an inadequate concern for the severe consequences of ordering a mistrial without the accused’s consent. Cherry v. Director, State Board of Corrections, 613 F.2d 1262, 1266 5th Cir. 1980. A trial court should give careful, deliberate, and studious consideration to whether the circumstances demand mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes. Smith v. State 263 Ga. 782 (1994). Thus, it was error for a trial judge to declare a mistrial over the objection of the defendant, where juror’s mother died after the trial began without considering how long the juror would need to be absent, or whether or not the juror would have been willing to continue with the trial. Also, the trial court failed to give each side an opportunity to explain its position on a mistrial. Cherry v. Director, State Board of Corrections, 613 F.2d 1262 (5th Cir. 1980) in effect reversing Cherry v. State 220 Ga. 695 (1965). In Terrel v. State, 236 Ga. App. 163 (1999), the court held that the failure of the trial court to affirmatively state on the record the alternatives, the court considered and rejected prior to announcing the mistrial, does not, standing alone, render the court’s determination so unwarranted as to preclude the defendant’s retrial. However, where inadmissible evidence has been introduced and curative instructions cannot free the jury’s mind of prejudice, a trial court should declare a mistrial Bentley v. State, 262 Ga. App. 541 (2003). In Knight v. State, 197 Ga. App. 250 (1990) the court held that the postponement of a trial in progress for 48 hours because of the illness of a juror was not a violation of double jeopardy, since a continuance of a case is not a termination of the trial. In contrast, however, is the case of pump lampoon v. State, 257 Ga. App. 5 (2002). There, after the first witness for the State was sworn, but before providing any evidence, the court terminated and rescheduled the case for the next week before a different judge after the court determined that the State was unprepared. The Court of Appeals ruled that the defendant had and placed in double jeopardy as a result. In Julian v. State 319 Ga. App. 808 2013, the Court of Appeals held that it was error for the trial court to grant  a mistrial on grounds of manifest necessity when the State was not allowed to present a witness by way of Skype over the objection of the defendant and should have granted the defendant’s motion for discharge and acquittal after the State sought to retry the case. The court noted that the State conceded it did not finally decide to present the witness until after the jury was impaneled. In the eleventh circuit case of United States v. Chica 14 F.3d 1527 (11th Cir. 1994) involving four criminal defendants, two of the defendants moved for mistrial on the ground that they had been prejudiced by certain testimony. The other two defendants, Chica and Ramos, had not been prejudiced. Counsel for Chica and Ramos wanted to continue the trial with these two defendants. The trial judge granted the motion for a mistrial over objection and, thus, retrial of Chico and Ramos violated the Double Jeopardy Clause. In dismissing the case, the eleventh circuit pointed out that the Double Jeopardy Clause does not contain a judicial economy exception. It has been said that jeopardy does not attach if a defendant is tried on an indictment which is fatally defective. Conley v. State, 85 Ga. 348 (1890). If the defendant files a demurrer to an indictment and after the introduction of evidence the court sustains the demurrer, this does not prevent the defendant from being tried again on a new indictment if the dismissal of the indictment is not the second dismissal of the charge. However, if a defendant is tried on a defective indictment for two or more crimes and he is acquitted of one crime, he may not again be tried for the offense for which he was acquitted. Contact a Paulding County criminal defense lawyer for help with your criminal case.

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