Late in the afternoon of September 5, 2018, U.S. District Judge Royce C. Lamberth declared a mistrial in the second trial of Nicholas Slatten. The jury had been deliberating for a remarkable 16 (!) days when it sent a note saying, “we are unable to reach a unanimous decision.”
Slatten is a former guard for the private security company Blackwater. This was his second trial. He had previously been convicted of murder for a shooting incident in Baghdad’s Nisour Square on Sept. 16, 2007. That conviction was reversed because the court of appeals concluded that Slatten should have been tried separately from his co-defendant.
Many people hear the phrase “hung jury” or the word “mistrial” and think that’s the end of a criminal case against that defendant. They are always surprised when I explain that it means the government can start all over and try the defendant.
In the Slatten case, Judge Lamberth declared a mistrial but gave the government until September 14 to decide whether to retry Slatten for a third time.
In the Paul Manafort case, the judge considered granting a defense motion for a mistrial after they learned that one juror had commented to a second juror that the defense case was weak.
So, what exactly is a mistrial?
In its most basic form, a mistrial is simply a trial that is not successfully completed.
In United States v. Perez, 9 Wheat. 579 (1824), Supreme Court Justice Story wrote that a judge should declare a mistrial when “there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”
Pretty specific, right?
When Does a Mistrial Occur?
There are many reasons a mistrial can occur, such as:
- death or serious illness of a juror (assuming there’s no alternate juror to replace her);
- juror misconduct (a juror is bribed or posts details about the trial on Facebook or researches the meaning of “reasonable doubt” on Wikipedia);
- unfair jury selection that is revealed after the jury is sworn (it turns out that a juror lied to get on the jury); or
- a serious error occurs during the trial that is highly prejudicial to the defendant (the prosecutor refers to evidence that was excluded or makes inappropriate remarks).
The most common reason for a mistrial is when the jury cannot reach a unanimous verdict. This is a hung jury or a deadlocked jury. A jury can be deadlocked on all counts or just some of them.
When the jury tells the court that it is deadlocked, the defense will move for a mistrial. The judge can either grant the motion or not. If it’s granted, then the trial is over. If it’s not granted, then the jury keeps deliberating.
I’ll write later about the joy of Allen charges—a highly prejudicial instruction given by the judge to the jury when the jury tells the court that it is deadlocked. An Allen charge instructs the jury in harsh terms about the need to reach a unanimous verdict.
Who Asks for a Mistrial?
Granting a mistrial rests within the discretion of the court. Either side can ask for one. But it’s more often the defense that asks for a mistrial.
A mistrial—particularly after a hung jury—generally helps the defense. There’s always the chance that the government will not seek to try the defendant again or may offer a generous plea deal. The passage of time before a second trial means that memories will fade or key witnesses may be unavailable to testify.
Contrary to what happens in the movies, though, asking for a mistrial does not involve leaping to your feet in open court and yelling, “I demand a mistrial, your honor!”
If something happens in court that could result in a mistrial, the lawyers will ask to approach the bench and ask for a mistrial outside the hearing of the jury. Sometimes the judge will simply deny the motion right then, if there are not strong grounds for it.
If there are strong grounds, the judge may take a short recess and excuse the jury to hear argument right then, or even recess for the day (or longer) and give the parties some time to prepare argument ask for argument on the motion.
Sometimes, there may be grounds to ask for a mistrial, but the defense has a strategic reason for not asking for one. When I tried the Inauguration Day Protest case in late 2017, the prosecutor in closing argument told the jury:
The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot.
We objected and the court immediately instructed the jury that the reasonable doubt instruction actually does “mean a whole lot” and should be taken seriously and that the jury should disregard the prosecutor’s comment.
It’s possible we could have asked for a mistrial right then and there. That was a fairly egregious statement by the prosecutor. But the trial had gone well for us and—reading the jury—we felt like we had a strong shot at an acquittal. Why start over when things may go badly a second time? So, we objected but didn’t ask for a mistrial.
I’m not sure the judge would have granted one, but we won our acquittal anyway. Our split-second decision turned out to be the right one.
What Happens After a Mistrial Is Granted?
After the judge grants a mistrial, everyone goes home. But the case isn’t over. The government can decide whether it wants to retry the defendant for the same crime.
As a practical matter, one of three things happens after a mistrial:
- The government decides to start completely over and subject the defendant to a new trial.
- The government and the defense—having seen a preview of the other side’s case—reach a plea deal, usually to a lesser charge than the original one.
- The government chooses not to try the defendant again, and the case is completely over.
What about Double Jeopardy?
The Fifth Amendment states that
No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.
So, if you’ve been tried once and the jury can’t reach a verdict, why isn’t it double jeopardy to try you a second time for the same crime?
A motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.
United States v. Jorn, 400 U.S. 470, 485 (1971).
However, if the court determines that the government provoked the defense into asking for a mistrial, then a second trial may be barred by the Double Jeopardy Clause. The prosecutor can’t decide she doesn’t like the look of the jury, make wildly improper statements during closing arguments that force defense counsel to ask for a mistrial—and then seek to try the defendant again, hoping for a better jury.
For example, in the 2011 trial against Roger Clemens for lying to Congress about the use of performance-enhancing drugs, the government showed the jury a video that had been excluded by the judge before trial. The defense objected and asked for a mistrial, which was granted. The defense then argued that the government should not be permitted to try Clemens again, because the government’s supposedly intentional conduct had goaded the defense into making the motion and a second trial would violate Double Jeopardy. (There was speculation that the government did not believe the trial was going well for them.)
The judge allowed the government to try Clemens again, and he was acquitted in 2012.
In contrast, after the jury deadlocked in the trial of former presidential candidate and Senator John Edwards for campaign finance violations on most charges (it acquitted him of one charge), the government chose not to try him again.
Mistrials Are Good—Sort Of
From a defense perspective, a hung jury sends a strong message to the government that its case isn’t as strong as it hoped. But if the hung jury is 11-1 for conviction, the government may think that it should try again. If the hung jury is 6-6, it may think twice.
As lawyers, we don’t know the split for certain. We can try to talk to the jurors—who may or may not talk to us. And even when they do talk to us, the split may have changed over the course of deliberations anyway.
But as a defense lawyer, a mistrial is usually helpful. It creates the chance that the government will go away (see, e.g., John Edwards) or that the second trial will go well for us (see, e.g., Roger Clemens). It also means we may be able to extract a better plea deal from the government.
Mistrials aren’t all sunshine and unicorns, though. There’s nothing fun (from anyone’s perspective) about trying a case for a second time. You have to work doubly hard to find ways to attack the government’s case and the element of surprise is generally eliminated. Plus, your client has to find the funds to hire you a second time to try the case.
I’d rather win the first time around.
[…] more seasoned and in command of the courtroom. (Check out what she has to say about trials here, here and here). I’ve had the good fortune to second-chair a few trials with her (and other great […]