afternoon your Honor, Scott Welfel on behalf of the defendant Steven Zadroga,
Nick Oleg J. CHIEF JUSTICE SUTART RABNER: Welcome counsel.
Mr. Welfel, please. �� good afternoon your Honors, I'd like to
reserve 3 minutes for rebullets if necessary. THE COURT: That's fine.
�� thank you and may it please the Court. In this case, the
State brought defendant to trial alleging that his blood alcohol content was
over 4 times the legal limit when it turned out that was not defendant's
blood much State did not realize this until midway through the trial due to the
State's own inexcusable neglect to review the blood vials prior to the
trial. Had they reviewed the vials, it would become immediately apparent that
this could not have been defendant's blood much the collection date on the vials
was 7 months prior to the accident and the blood draw in this case.
Additionally, the patient number on the vials did not match defendant's patient
number and his medical records. While the State always has a duty to
review its evidence to ensure it is accurate, in this case, they had an extra
reason to second guess which was the fact that the BAC level of.376 is normally
such that a person would be unconscious and yet none of the officers
who enter racked with defendant at the scene in this case even suspected he was
intoxicated. Post with this revolution, defense counsel invoked due process
and double jeopardy and moved for the only remedy he felt was appropriate in
this circumstance which was dismissal of the indictment with prejudice
barring further prosecution. Defense counsel did not ask for just a do over for
a retrial. The Court instead granted dismissal without prejudice and held that
retrial would be permitted referring specifically to 2 subsections of
2C:. 19 D. Under subsection D 1 the court found that defendant's motion to
dismiss constituted consent for a mistrial. And under subsection D3,
the Court found a manifest necessity to declare the mistrial due to the PRECH
to the defendant and indeed there was prejudice to the defendant. Both
counsel in opening statements had stated that defendant's blood was over the legal
limit. Additionally, a witness had testified that she had been with
defendant prior to the accident and he had been drinking. Even assuming that
the Court was correct that this prejudice was not curable with a corrective
instruction, it was the State's inexcusable neglect that caused this
prejudice. In State v. Farmer is clear that when it is the State's inexcusable
neglect that creates the need for the mistrial double jeopardy bars
retrial. So therefore, State's, the Court's assessment
under D3 was incorrect. Turning the Court's assessment under D 1,
first of all, the Court did not rely on defendant's motion much the Court
in its -- during oral argument on February 21st made clear it felt obliged to
declare a mistrial due to the prejudice to the defendant independent
of defendant's motion. And secondly, defendant's motion in this case because
it was specifically for dismissal with prejudice sought a remedy that
did not contemplate retrial and therefore, defendant preserved his double jeopardy
argument. The Court should hold that in this case under these facts when
the State's inexcusable neglect to review its blood evidence led it to bring
defendant to RIEL with the wrong blood evidence and that inexcusable neglect
caused the need for a mistrial, that retrial is barred by double
jeopardy. I'd like to structure my argument in 4 points of
the 1 I'd like to address the error briefly. 2, I'd like to argue why organ V
Kennedy does not apply in this case because defendant's sole remedy
sought was dismissal with prejudice. Third, if organ V Kennedy does
not apply then under farmer retrial was barred because it was the SAIT
it's own inexcusable neglect that created the need for the mistrial and fourth
if this Court finds organ V Kennedy would apply we ask this Court to depart from
organ V Kennedy under our State constitutional protection following
the example of 7 other supreme courts and the 57 rated history of double jeopardy
protectionness our State's history and common law. Beginning
my first point I invite the Court's questions. THE COURT:
Because we don't have the trial record, could you tell us what the jury heard
with respect to the BAC level. MR. WELFEL: Yes, your Honor,
and this court does have a trial record. Unfortunately because I was an
an app counsel I did not crafting the record before the Appellate Division
vision. After I initially submitted my supplemental brief I did submit to this
Court the 2 trial transcripts. THE COURT:^ tell us what's
in evidence with respect to the BAC level and argument to the jury in
openings. MR. WELFEL: So with respect to the BAC level there was
no evidence presented. There was only reference to it in OEMGS of the the State
opened saying that before Mr. Zadroga got in his car, he was in 2
different bars in Hoboken for 3 hours drinking alcohol beverages and he was above
the legal limit. THE COURT: Let me zone in on what I was most
focused on of the did the jury hear during openings that it was.376.
MR. WELFEL: Yes shall State did not State that in opening. Defense counsel
did presumably to soft en the blow.Ity very common that defense counsel will
even if the State doesn't highlight the most prejudicial evidence it
anticipates so that the jury is not later surprised. So
that's on the July 10th transcript both that's pages 35 and 28 and then defense
references the BAC on page 55 and then during the July 11th transcript,
that's the testimony of ea VAD any Figueroa rah and throughout her entire testimony
from pages 9 through pages 49 she does testify that she was with defendant
and he was drinking. This error is the State's error and the
State's error alone. The State had the vials in their possession and the vials
were the only evidence that conclusively indicated this was not defendant's blood.
When DOOK Billy any first went to retrieve the vials from the hospital
obviously the hospital made a mistake but if the detective had just looked down
at the vials he would have seen the collection date was April from 2017,
not November when the accident occurred. ASSOCIATE JUSTICE RACHEL WAINER
APTER: ARNL case red farmer to create a bright-line rule where necessity
for mistrial was Dawes caused by the State's bad fame or excusable neglect.
MR. WELFEL: So in my reply to the amicus I did set form my
argument for why farmer should be interpreted to be a bright-line rule. I don't
know of a case saying the latch bright-line rule. I also don't know
of a single case where the Court found inexcusable neglect by State and held that
retrial was permitted and that's not just New Jersey. That's including other
-- that's including federal jurisprudence as well looking at the
fourth circuit in Schaefer where there was, State's theory at trial had to do
with defendant committed arson base of a financial problem and during trial
through a defense subpoena it was revealed that whereas State thought he was
in financial jeopardy, he actually wasn't and the State had had his FM records
in evidence but didn't realize it and and Schaefer distinguished between
excusable and inexcusable negligence is the word they use there and held that
retrial was prohibited because of the inexcusable negligence so while
I don't know of any case referring to a specifically as a bright-line rule, I don't
know a case permitting retrial where they found such a finding and even
if it's only 1 factor, and not a bright-line rule, I do believe under these
circumstances we would still under farmer. A few other
things with respect to the blood evidence and the Court's findings before I turn
to why we should be governed by farmer. So the Court found both inexcusable
neglect and bad faith. We're primarily relying on inexcusable neglect and the
court had several bases for this findings including that the Court
warranted (Inaudible) which required a duty to verify the blood that it received
from the hospital was defendant's blood which detective belly any would have
been alerted to the error had he just looked at the collection date on
vials. We acknowledged there was no name on the vials. There was a collection
date. It wasn't even close. It wasn't like a few days off. It was 7
months off. ASSOCIATE JUSTICE ANNE M. PATTERSON: And there was
no name, the hospital knew it was supposed to get the blood sample of your client.
MR. WELFEL: Yes. ASSOCIATE JUSTICE ANNE M. PATTERSON:
And these are the vials that it handed to the detective, right.
MR. WELFEL: Yes. Go there are a lot of circumstances under which other
actors errors can 'em pack the State's evidence at trial but it did not
absolve the State of its duty to verify this. ASSOCIATE JUSTICE ANNE M.
PATTERSON: I'm not suggesting but there is no question hear -- there's no
allegation here of any kind of intentional switching of blood samples.
MR. WELFEL: Absolutely correct. ASSOCIATE JUSTICE ANNE M.
PATTERSON: You're saying the mistake was not to essentially check with the
hospital was representing that it was doing by looking at that date.
MR. WELFEL: Yes. CHIEF JUSTICE SUTART RABNER: Looking at
that more broadly is there any evidence on intent on the part of the State to
subvert the double jeopardy clause in this case. MR. WELFEL:
We are not alleging intentional misconduct of the Kennedy variety. We
acknowledge that if this court holds Kennedy applies and does not depart
from KEP did I we would not prevail but notwithstanding the fact that the
State did what it was required to do under rule of pro physicianal conduct 3.8
by disclosing this as soon as it revealed, we do believe that the
Court's finding below that the State committed inexcusable neglect by (Inaudible)
the of was correct and that should be barred at trial. Turning
to Kennedy should not apply. So this Court should not apply condition at this
for Hee reasons. First the defendant moved for dismissal with PRFRN
arguing that further prosecution be barred. Second Kennedy applies only when
the remedy sought by defendant contemplates a new trial so either an order
motion to dismiss the indictment without prejudice or a motion for a
mistrial. And the. The trial court made clear in this case during
the February 21st transcript that the Court's decision to order a mistrial was
independent of any motion by defendant. So first look at the
latch of organ V Kennedy and did you know nits which Kennedy builds on ,
did you know nits has been declared at the defendant's request or quote a
motion for by the defendant for a mistrial. Kennedy uses the same language.
Quote a mistrial declared at the behest of the defendant. And
then the other case referring to motions to dismiss indictment and that refers
to a motion to dismiss without prejudice. In Lee, I actually think Lee
is a good case to look at because unlike here, in Lee, first of all, it only
dealt with a facial deficiency of the indictment where the indictment didn't
allege the recry sit mens rea. It was apparent by immediately glancing
at and defendant knew about it and didn't raise it until after the State had
opened and so under -- so there were several reasons why double jeopardy
didn't bar retrial in that circumstance. 1 the remedy sought was clearly only
a regular dismissal, not dismissal with PRECH, and 2, State was, sorry, the
defense counsel was partial I responsible for the position that the court
was in because it had waited to file that motion. Here so
what both of those mowings have in common is they contemplate retrial. Here
defense counsel SPIFBLGly sought preclusion of further prosecution.
During the oral argument on July 15th, the defense counsel said the case was fatally
flawed in part arguing that the Hudson County prosecutor's office
detective's report, detective Bisone who wrote a fatal collection collision report
and arrived at a conclusion that this accident would not have occurred but for
defendant's reckless conduct relied on the BAC in that finding much
the defense counsel said well, what is he going to do now, he's going to rewrite
the same report but take out the blood alcohol content and the point is not
whether or not the defendant was correct on that argument under due process much
the point was he was invoking due process to say the trial cannot proceed,
the prosecution cannot proceed, and then the Court instead of asking defense
counsel well, if I can't give grant you dismissal with prejudice, what do you
want? Do you want dismissal without prejudice? Do you want me to craft
a curative instruction. The Court just ruled I'm granting dismissal without prejudice
and retrial is permitted under D 1 and D3. THE COURT: And
counsel at that point did not stand up and say judge, that wasn't on our
application I object to this. We insist that it only be a DFD without prejudice.
MR. WELFEL: At that point the Court has ruled RN the Court
hats come to a SDILGS and is reciting its oral opinion. In my experience, Court
find if quite rude if you interrupt them in the middle of the ruling.
CHIEF JUSTICE STUART RABNER: Do that after, when they finish
reciting their ruling SKROO Welsh Court had ruled at that point and defense counsel
believed defense counsel in addition to the due process I argued before,
defense counsel specifically said what is my client supposed to do. He's already
spent 100000 $ on his defense. Is his family supposed to take out another
loan for 100000 $ so he's raised this double jeopardy KERP. He probably believed
he had preserved that argument. The judge had ruled. He thought the
judge was wrong. He filed a motion for reconsideration. In down
S CA Y C says we reserve any right in liberty of the favor of the citizen rather
than exercise what would be an unlimited, uncertain.
ASSOCIATE JUSTICE RACHEL WAINER APTER: The context of a braids did I violation
this Court requires that the prosecutor pros KIE tore ya'll misconduct be
willful and outrageous in order to bar a retrial. Why should something similar
not apply here. MR. WELFEL: So Brady and double jeopardy are
2 different interests of the Brady is with respect to whether defendant can get
a fair trial or whether he was did he private of a fair trial and whether he could
get a fair trial versus due process protects the defendant against
multiple prosecutions subjecting him to the anxiety, the expense and the or deal
where when it would be grossly unfair. That's the language under green
and Arizona V Washington and we submit farmer captures when it would be grossly
unfair and it would be grossly unfair when the State's inexcusable neglect
prevented defendant from being able to have a fair trial in that instance SNOOR
but the trial court here did hold specifically that it would not be grossly
unfair because the defendant had not been and this is a direct quotation,
subject to necessary to warrant a dismissal with prejudice. Of the 2 remaining
counts that had nothing to do with the intoxication. Given that the
the standard of review is very deferential to a trial court's decision on whether or
not to grant a mistrial, why do we not have to defer to that finding, that
the defendant was not subjected to this quantum of oppression, harassment or e
gregious deprivation. MR. WELFEL: YORNG the Court did find that.
I'm not asking the Court to oar overturn that finding. That. If you look
at, so your Honor is quoting from the opinion on defendant's motion for
reconsideration and if you look at the structure of that opinion, the KOVRT
first addresses double jeopardy, sorry, first addresses due process. And then
starts to address double jeopardy but then doesn't actually issue any holding
on double jeopardy much the Court then turns to the fundamental fairness
factors and those factors that your Honor is quoting are factors that our courts
have applied even when double jeopardy itself doesn't bar retrial when
fundamental fairness might and so while they are relevant to a fundament #58 fairness
inquiry they are not relevant to double jeopardy inquiry SNOOR you were
citing very similar, maybe not those exact words but you were citing something
very similar explaining why the double jeopardy rule even to intoxication.
MR. WELFEL: Yes, your Honor. What I was COMBOETing is from Arizona
V Washington and green which are the principles behind the double jeopardy rule
but the rule itself doesn't speak to evaluate willing those factors
as we articulate the rule should be understood from farmer. I am not aware of
any court evaluating whether, how long the defendant has been subject to
pros DUGS under double jeopardy. Or whether or not defendant was in custody or
Mott in custody or the strength of the rest of the State's evidence. As far as
I'm aware, those are not material to the Court's consideration of double
jeopardy. My final point on why farmer should amy is if we
look at the court's colloquy during the February 21st transcript, pages 23 and
25, the Court says starting on 23, quote, I think at that point in a
case like this it was incumbent upon me to declare a mistrial regardless of defense
motion. That's my view. Doesn't farmer almost mandate me declaring a mistrial
in a case like this? I think it does anyway. On page 25,
once the jury heard about the blood alcohol and blood alcohol before a fatal
crash, I don't think a jury instruction would have erased from their
mind in an indicates like that. So justice Waynener app TER's question
I think we defer to the Court's finding here, I do think that is the
standard and the Court is basically saying I would have had to grant a mistrial
anyway because the defendant couldn't have had a fair trial at that point
and then we look to -- therefore defendant's motion was immaterial and then we
look to what caused the mistrial and it was the State's error, not defendant's
error. This isn't like in D I N IT Z where it was the DFT's counsel
prejudicial and inappropriate comment in opening that prejudiced the trial and
created the need. Additionally in D I N I T Z, unhike in this
indicates the Court's action that spurred consideration of a mistrial was
after counsel's inappropriate comments shall the court excluded first counsel,
trial counsel from the courtroom. Defendant had 2 other counsel and
the court gave defendant 3 options. You can proceed with 1 of your other due counsel,
you can soak a stay to appeal my ruling excludeing your first counsel
or you can have a MITS trial and defense counsel specifically in that case op
opted for the mistrial. Here the Court found that when dismissal was not
appropriate, the Court did not give defense counsel any other options, did not
explore any other options. JUDGE DOUGLAS M. FASCIALE: What other
OMSs are there. MR. WELFEL: Well, like I said, I think we
do need to defer or at least standard in this Court's jurisprudence is
to find (Inaudible) regarding a mistrial but if that's the case, we also have
to defer to the Courts that the finding that it was not relying on
defendant's motion and if it wasn't then we're in farmer territory and not Kennedy
territory. THE COURT: Is that correct Anna litcally that
what the counsel said was immaterial. Supposing counsel on another case stands
up and says your Honor this is such an egregious error we have to have a
mistrial here and I'm not concerned about double jeopardy principles. We must
stop the prosecution and then the Court makes the comment that this trial judge
did. Do you egg nor what counsel said. MR. WELFEL: No, I'm
not relying sole on the fact that the court sewed it would have to do this
anyway. I'm relying on that in combination that the sole remedy sought by defendant
was termination of the proceeding entirely. I think any time defense counsel
says I, you know, retrial is okay, like I just want a regular mistrial,
then double jeopardy doesn't come into play. CHIEF JUSTICE
SUTART RABNER: My point is it's not immaterial in that you ignore it? You may
give it less weight but it is a factor to be considered. MR.
WELFEL: Yes, your Honor, and I believe that the way you consider it is what the
rim did I specifically sought was. I did direct this Court
's attention to a New York State Court of Appeals case, Davis V brown which
was a similar scenario where defendant did seek a mistrial, sorry, a dismissal
of the indictment with prejudice and the Court there held that specifically
once the court, the Court of Appeals held that once the trial court deemed
it not that it shove given the trial counsel the opportunity to say okay, well,
do you want dismissal without prejudice, do you want a curative instruction,
and didn't explore that at all and therefore double jeopardy was preserved in
that case. So I believe we deadline already discuss why I
believe double jeopardy bars retrial under farmer. Just in terms of looking at
why a focus on State's good faith or bad faith conduct inexcusable neglect or
excusable neglect matters. I'm look at a pair of case, loyal and Hilton.
Loyal is this court's case where they both involved a need for a mistrial where
it was electricity conflict between defense counsel who had represented
the key state's witnesses previously. In Laurel this court found retrial is not
prohibited because the State court did not know, had no reason to know
SHS this was no bad faith. In Hilton, the defense counsel had
(Inaudible) because the State was inexcusably negligent before allowing jeopardy
to attach so it is the case that across states, even in the federal jurisprudence
whether it is the from defendant's fault or the State's fault and ifity
the State's fault if that caused the mistrial is a key factor.
Unless the Court has any questions about why Kennedy should not amy offer why
(Inaudible) farmer I will turn to why this court should apply to condition
did I. THE COURT: May I ask you a question with respect it
that? The jurisdictions that have a broader do any of them not consider the
prosecutor's intent. MR. WELFEL: I think that the -- the
prosecutor's intent is always relevant. -- the Court's set a different threshold
for what level of intent is required. So for example in New Mexico the prosecutor
has to act in willful disregard of the potential mistrial reversal.
In Oregon, the official has to know the conduct is improper. In Hawaii there's
1 thing where they look at intentional misconduct. In another framing
they just ask, they just use the word ea DPREE Justice and they just say is the
prosecutor's conduct so egregious that from an objective standpoint it
clearly denied the defendant's right to a fair trial. And what I SKRIET is probably
most relevant to this Court's is the Johnson standard from Pennsylvania which
uses a stashed of recklessness but what Ricklessness, the disregard
the willful, the knowing disregard of that recklessness is in failing to prepare
for trial. Right? I know I didn't double-check the blood evidence, not
that I know the blood I have had is wrong, I know I didn't double-check it and
that's the willful disregard as Pennsylvania INTERNTS reckless NECHLS the
facts of Johnson are somewhat analogous to the situation here. In Johnson,
the State proceeded to trial on the theory that there was 1 baseball cap that
had both the victim's blood and defendant's blood but it turned out
there were 2 different baseball caps and there were 2 errors that led the State
not to realize this before trial. 1 was app police officer's error in not
sufficiently documenting the second baseball cap, similar to the officers's error
here in in the looking at the vials and seeing that the number -- the collect
date was wrong and the second was and the prosecutor's error in not
comparing the property evidence receipt numbers between the 2. And the court
found in that case there was prosecutor had inexcusably recklessly failed to
prepare for trial and that that double jeopardy precluded retrial.
So I do suggest this court could adopt Johnson but this court wouldn't even need
to adopt 1 of the other specific standards. This court could just
return top nap NA P O which was a Law Division case which was a gloss on farm
er and the way NA P O understood farmer was 1, when a mistrial results from
good faith prosecutorial error and is required as a matter of manifest necessity
or is granted at defendant's request, there's no bar it's a retrial, but 2
when the circumstances speak bad faith, inexcusable neglect on part of the
State the termination is file. Only B obviously our courts have recorded
since Kennedy was decided that under federal law NA P O is no longer
good law. However this court could hold that NA P O is the correct standard.
And speaking specifically to why this Court can and again
I don't think we need to reach Kennedy. I think this can be decided under farm
er but if this court BLOOIFS we need to reach Kennedy, I think if we look
at the problems with Kennedy and then our court's long history of honoring double
jeopardy protections we can depart from Kennedy so so with respect to that
second point this court in 1833 said that double jeopardy is no deeply rooted
in our common law that even if we didn't have a constitutional protection we
would still apply double jeopardy protections. If we look at the 1844
constitutional convention, chief justice horn blower expressed the same belief.
He thought the proposed double jeopardy clause wasn't even necessary.
And indeed it's so deeply rooted that we protected double
jeopardy in 1833 even though the federal Supreme Court did not hold that it was
-- the Fifth Amendment was incorporated in the State until Benton, I believe
it was 69, even though today we apply a much greater protection under the article
1 paragraph 7, search and seizure, we do not apply the exclusionary
rule until after Matt Matt V Ohio and we were applying double jeopardy long before
that so I think it is a very deeply rooted in the State's tradition.
JUDGE DOUGLAS M. FASCIALE: And therefore greater protections
under our state constitution. MR. WELFEL: I didn't.
ASSOCIATE JUSTICE ANNE M. PATTERSON: But in general we've been consistent with
the federal government on. MR. WELFEL: So I'm just saying
that doesn't, the fact that the case is this court has been confronted
heretofore doesn't bind this court so obviously constitutional law and common
law are a matter of receiving case DZ with different facts, looking
at the principles and arriving at a conclusion of law that upholds those principles
and. MR. PLAINTIFF'S ATTORNEY:^. ASSOCIATE
JUSTICE ANNE M. PATTERSON: There are a number of constitutional provisions which
are have deep roots in the State's history. As to which the the
(Inaudible) there's nothing contradictory about that. MR. WELFEL:
That's correct. And therefore I think the deciding factors should be problems
with Kennedy itself so first, KEP did I does not fulfill the core promise
of the double SCOMBREP did I protection. Kennedy foe did you says on 1 part of
double jeopardy protection which is defendant's right to proceed with a
particular jury. However, as these other 7 courts have recognized and even justice
Stephens in the concurrence in Kennedy that sometimes egregious prosecutorial
misconduct has been RIN DIRed the (Inaudible). Which is protect
defendant against repeated harassment of repeated statement by the State to convince
when it would be grossly unfair and double jeopardy is primarily about
protecting the defendant, not focusing on the prosecutor. But the specific intent
to intentionally go goad defendant into a mistrial it's not focusing
on that protection to defendant and it doesn't,ity not even internally consistent.
If a prosecutor's misconduct at trial were with the intent to secure
a conviction by perhaps intentionally depart FRG a judge's in limine ruling regarding
evidence but his intention was not to cause a mistrial under Kennedy ,
double jeopardy would not bar retrial. ASSOCIATE JUSTICE ANNE M.
PATTERSON: But that's not the situation here. MR. WELFEL:
That's correct. ASSOCIATE JUSTICE ANNE M. PATTERSON: This is
a different setting. This is -- there's no evidence whatsoever that there was
any intent on the part of the State to bring about a mistrial.
MR. WELFEL: That's correct. We are not alleging that. We are alleging that the
Court's finding below of inexcusable neglect was correct under these
facts. JUDGE DOUGLAS M. FASCIALE: Other than the finding
of inexcusable neglect, do any of the other Smith factors apply in terms of manifest
necessity. MR. WELFEL: So the way I read Smith is sort of
DRAG on the fundamental fairness factors and I think that if this Court holds
that farmer is applicable and not Kennedy, then the inexcusable neglect that
the State in and of itself because it was, it wasn't just inexcusable
neglect and failing to adequately prepare a specific witness so the witness maybe
says something that they shouldn't have that normally we can cure with a
curative instruction. This was so fundamental to the heart of the State's case
and so prejudicial to the defendant that it cooperate have been cured, even
though Smith does mention those 5 factors, this outweighs and carries
the day with respect to any others. ASSOCIATE JUSTICE RACHEL
WAINER APTER: You don't have cases that have previously held that that is a
bright-line rule but there are also no cases holding other bay that there has
been inexcusable neglect but there can be a retrial and specifically mentioned
a court circuit case that's shaper. MR. WELFEL: Yes. That's
in my reply to the AG's brief. So unless the Court has further
questions, I'd just like to briefly conclude. THE COURT:^
1 question with respect to prejudice. If your argument does not prevail and
defendant is directed to undergo a second trial, what is the prejudice
that he suffers in this case? MR. WELFEL: So if your Honor's question
is directed to the PRECH in terms of the ability to have a fair trial
moving forward, I believe that's addressed by the due process concerns that the
Appellate Division answers much the Appellate Division decided that
because of the due process young blood violation, the only way a fair trial could be
had would be to par any evidence of intoxication whatsoever.
CHIEF JUSTICE STUART RABNER: Is there prejudice beyond that.
MR. WELFEL: The prejudice beyond that is the pressure that every defendant suffers
with a second trial and I don't think, obviously defense counsel did raise
at the initial motion to dismiss with prejudice, the specific prejudice to this
defendant regarding the amount spent. I don't think that carries the day,
right? We're not going to give greater double jeopardy protection to who spend
more or MRES to those who have a Public Defender but from that same logic I don't
think we answer a double jeopardy question by looking at the prejudice
to the specific defendant. Versus--- I mean double jeopardy is usually an on
or off switch. We believe that the reason for mistrial here was the
State's inexcusable neglect, that retrial is barred here.
JUDGE DOUGLAS M. FASCIALE: I thought there was some evidence of intoxication,
observation evidence by a police officer who appeared at the scene, odor of
alcohol, defendant's behavior. MR. WELFEL: So in the -- so
no, there were 2 officers who testified at trial hoop those are officers
2 low and M and both of which said he had they did not smell alcohol.
On not on trial, it was alleged that a bus driver, Mr. Rojas said he smelled
alcohol on defendant. At trial didn't he testify to that. The State didn't
ask him and he didn't testify to that SNOOL this was only the GIPG of the trial.
There was more evidence to come in and I thought the trial court concluded that
there was other evidence that could uphold or could sustain a conviction
on accounts that were not DFD. MR. WELFEL: Yes, your Honor. And again,
so was there evidence of recklessness aside from the BAC? Yes, there was
the speed and then the State aLECHSD that the defendant crossed the double yellow
lines but the double jeopardy question isn't whether or not there was
other evidence that could have KVP KFBTed him.? Whether or not the defendant
could have been a fair trial on remaining counts of the it's whether or not
the State's conduct in this case and the. ASSOCIATE JUSTICE LEE A.
SOLOMON: No I under that. I'm just saying on remaining counts the court
CLIERL found that there was other evidence that had not been yet introduced at
trial that could establish shall the ones that survive could establish
guilt on those counts. MR. WELFEL: Yes, your Honor. That's correct
but the Court's bass sis for dismissing the counts that had the BAC
element and those that did not was not double jeopardy. It was due process. The
Court, as I mentioned to justice Waynener apartment TER, I'm sorry
shall your Honor, the Court did not actually in its written opinion on motion
for reconsideration really spell out a double jeopardy analysis. It started with
due process. Discussed double jeopardy and then jumped tomental fairness
SNOOR that's also, correct, said said that defense counsel raised double jeopardy
by mentioning that defendant had already spent 100000 $ but didn't discuss
double jeopardy at any length or anything like that. MR.
WELFEL: That's correct your Honor. I absolutely think that defense counsel could
have written a brief that mentioned double jeopardy. Could have
mentioned double jeopardy case law. The time line of this is, it's -- the testimony,
second day testimony well I know that was the 11th. I know that was the
Thursday. Friday was the 12 NL FLT that's when the State investigated the evidence
and realized it was erroneous much the brief defense counsel filed was on
the 14th and oral argument was on the 15th so if defense counsel is raiding double
jeopardy and due process if the court believed look you haven't given me
law on which it rule then I mean we have an active jury, we have an active trial
the the Supreme Court says if you want me to rule on this I'm going to give
you until tomorrow to write a brief where you actually raise that because
defense counsel could only come up with certain law in the time that defense
counsel had that the defense counsel should be barred from raising these
additional legal areas where there were specifically raised to the Court.
THE COURT: Thank you, counsel. MR. WELFEL: Thank you very much.
CHIEF JUSTICE SUTART RABNER: Mr. OLEG NEKRITIN: MAY IT
PLEASE THE COURT. I BELIEVE THE JUSTICES HAD ASKED MR. WEFL ABOUT THE PREJUDICE
THAT WOULD BE EXPERIENCED TO THE DEFENDANT IF HE HAD TO UNDERGO OR HAVE A SECOND
TRIAL. AND IT'S NOT MY PER BODILYLY TO SAY THAT GOING THROUGH A TRIAL THAT IF
YOU CARE A LOT ABOUT A DEFENDANT IS ONE OF THE WORST EXPERIENCES IN YOUR LIFE.
YOU GO IN THERE EVERY DAY AND YOU WONDER AND YOU ASK YOURSELF IF YOU'RE A
DEFENDANT IS THIS GOING TO BE THE LAST DAY THAT I'M GOING TO BE FREE OR AM I GOING
TO BE, YOU KNOW, IF I'M FOUND GUILTY AM I GOING O TOOK HANDCUFFED AND TAKEN TO
JAIL OR PRISON. CHIEF JUSTICE RABNER: IS THAT THE SORT OF
PREJUDICE THAT SCHAFFER AND SMITH DISCUSS? NICK Z. OLEG NEKRITIN:
IN A GENERAL SENSE WHEN VARIOUS COURTS DISCUSS WHY DOUBLE JEOPARDY PROTECTIONS
ARE IMPORTANT, THEY REFERENCE THE ANXIETY AND STRESS BOTH PERSONAL AND FINANCIAL
THAT A DEFENDANT EXPERIENCES AT TRIAL. WHY DO WE HAVE DOUBLE JEOPARDY
PROTECTIONS IS TO PROTECT THE PERSON FROM UNDERGOING THAT TRIAL AND THAT STRESS.
SO FROM A GENERAL PERSPECTIVE, YOUR HONOR. CHIEF JUSTICE RABNER:
SO STRESS AND EXPENSE ARE THE INDICATORS AS YOU READ THE CASE LAW?
OLEG NEKRITIN: NO, JUDGE. THEY'RE JUST CONSIDERATIONS THAT I THINK THE COURT
HAS TO TAKE INTO ACCOUNT OF WHY WE WOULD HAVE STRONG DOUBLE JEOPARDY
PROTECTIONS, WE CAN'T FORGET ABOUT THE PERSON. CHIEF JUSTICE RABNER:
I THINK YOUR POINT IS ACTUALLY WELL PUT BUT WE WOULD NEED TO NEVER UNDERGOING
A SECOND TRIAL. I DON'T KNOW A DEFENDANT WHO ENJOYED A FIRST TRIAL AND THOUGHT
IT WAS STRESS FREE. OF COURSE YOUR ARGUMENT IS CORRECT BUT DOES THAT
CARRY THE DAY IN TERMS OF THE LABELED ANALYSIS? OLEG NEKRITIN: SURE,
JUDGE. IF THE STATE'S CONDUCT IS SUCH THAT WE COULD BAR THE STATE --
CHIEF JUSTICE RABNER: WE'RE JUST TALKING ABOUT PREJUDICE. THAT'S WHERE THIS
CONVERSATION BEGAN. OLEG NEKRITIN: YOUR HONOR IS CORRECT.
THAT'S NOT THE FOREMOST OF CONSIDERATIONS. PIGGYBACKING ABOUT WHAT MR. WELFEL STATED
ABOUT SUBSTITUTING THE JOHNSON CASE FOR THE OR GONE V KENNEL DEE CASE, I THINK
ONE OF THE POSITIVE EFFECT IT IS WE WERE TO DO THAT IF THE COURT FINDS THAT FARMER
DOESN'T APPLY WILL BE THAT THE STATE WILL BE MORE LIKELY TO EXAMINE THEIR
CASE TO LOOK AT THEIR DISCOVERY AT AN EARLIER TIME THAT ON THE EVE OF TRIAL. I
SYMPATHIZE WITH THE STATE. YOU FREQUENTLY -- YOU GO TO COURT EVERY MONDAY
AND FRIDAY AND YOU SEE THE PROSECUTOR CARRYING A CRATE OF A HUNDRED FILES. IT'S
VERY HARD AS A DEFENSE COUNSEL TO HAVE SUBSTANTIVE AND MATERIAL CONVERSATIONS
ABOUT YOUR CASE BECAUSE FREQUENTLY THE CASE DOESN'T HAVE THE TIME OR THE RESOURCES
TO EXAMINE THEIR CASE. BUT IF WE ADOPT THE JOHNSON CASE, YOUR HONOR, IT
WILL REQUIRE THEM, IT WILL INCENTIVIZE THEM TO LOOK AT THE CASE EARLIER TO MAKE
SURE THAT ALL THE DISCOVERY THAT THE CASE HAS, THEY'VE LOOKED AT, THEY'VE
PROVIDED THEY'VE DOUBLE-CHECKED SO THAT AN ERROR LIKE THE ONE WE HAVE IN THIS CASE
DOESN'T OCCUR. SO IN TERMS OF ADOPTING THE JOHNSON CASE I THINK THAT WILL HAVE
THE POSITIVE EFFECT OF POTENTIALLY EVEN HAVING CASES RESOLVE EARLIER ON IN THE
PROCESS. I DON'T WANT IT REPEAT WHAT MR. WELFEL REPEATED
BECAUSE HE WERE DO A MUCH BETTER JOB THAN ME. SO UNLESS THERE'S ANY QUESTIONS I WOULD
SUBMIT AND JOINT IN MY COLLEAGUE'S ARGUMENTS. CHIEF JUSTICE
RABNER: THANK YOU VERY MUCH. OLEG NEKRITIN: THANK YOU, YOUR HONOR.
CHIEF JUSTICE RABNER: MR. RINALDI. LEONARDO
RINALDI: MAY IT PLEASE THE COURT. THE STATE SUBMITS THAT THE TRIAL COURT WAS
CORRECT IN GRANTING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT IN THIS
MATTER AND, THEREFORE, UNDER 2C 1-NINE D1 THE TRIAL WHAT'S PROPERLY TERMINATED WITH
THE CONSENT OF THE DEFENDANT. PETITIONER'S ARGUMENT THAT HE DID
NOT CONSENT IS WITHOUT MERIT AND CONTRIBUTION THE RECORD BELOW. IT IS
CLEAR THAT WHEN HE FILED THE MOTION TO DISMISS THE INDICTMENT HIS INCIDENT WAS TO
END THE TRIAL. HE NEVER OBJECTED TO THE TRIAL COURT GRANTING HIS MOTION
AND WHILE ARGUING THE MOTION TO DISMISSES THE INDICTMENT ON JULY 15TH WHILE THE
TRIAL WAS STILL ONGOING, HE DIDN'T OBJECT TO THE STATE CONCEDEING TO HIS
MOTION TO DISMISS THAT INDICTMENT. THERE WAS NEVER ANY OBJECTION. THERE WAS NEVER
ANY -- IN FACT, THE COURT ACTUALLY NOTED THAT DEFENSE COUNSEL CONSENTED TO THE
DISMISSAL OF THE INDICTMENT AT THAT TIME. SO THE STATE SUBMITS THE PROPER
REVIEW IS UNDER KENNEDY IN THIS MATTER AS THERE WAS A PROPER TERMINATION
OF THE TRIAL WITH THE CONSENT OF THE PETITIONER. THIS IS
FURTHER SHOWN THAT ON RECONSIDERATION THE TRIAL COURT AGAIN STATED THERE WAS NO
QUESTION THAT MISTRIAL WAS NECESSARY AND THAT IT PROCEEDED TO DISCUSS THE DEFENDANT'S
APPLICATION ON RECONSIDERATION SPECIFICALLY AS A BRADY VIOLATION AND
FUNDAMENTAL FAIRNESS. SPECIFICALLY THE TRIAL COURT ANALYZED THE
ERROR BY THE STATE AS A BRADY VIOLATION. DEFENSE COUNSEL HAD ARGUED THAT BY
NOT BEING -- NOT HAVING THE DEFENDANT'S BLOOD HE WAS DEPRIVED OF A DEFENSE AT TRIAL
IN THAT THE COURT FOUND THAT THE DEFENDANT'S DUE PROCESS WAS,
THEREFORE, VIOLATED BY THE STATE NOT PRESERVING AND OBTAINING THE BLOOD OF THE
DEFENDANT. THE STATE WOULD SUBMIT THAT THIS FINDING BY THE TRIAL
COURT AND UPHELD BY THE APPELLATE DIVISION FOLLOWS THE LOGIC THIS COURT HAD YOU BELIEVE
STATE V. BROWN. THAT AS THERE IS NO EVIDENCE OF PROSECUTORIAL PROVE
VACATION OR WILLFUL MISCONDUCT, THEREFORE, THE STATE WAS -- THE TRIAL COURT WAS
CORRECT IN DISMISSING THE FIRST COUNTS OF THE INDICTMENT. THAT WORK THE
AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER WITHOUT PREJUDICE IN ALLOWING
THE STATE TO PROCEED AND AS THE TRIAL COURT AND THE APPELLATE DIVISION UPHELD,
THE DISMISSAL OF PREJUDICE WOULD BE COUNTS THAT WERE SPECIFICALLY RELATED
TO THE BLOOD ALCOHOL CONTENT OF THE DEFENDANT THAT LED TO THE TERMINATION OF THE
TRIAL. IT WAS PROPER. DEFENDANT HAD REQUESTED DISMISSAL IN THE INDICTMENT
AND AS THE APPELLATE DIVISION HAD FOUND THAT THE MISTAKE OF THE STATE AND THAT
THE STATE ACCEPTS THIS MISTAKE, THAT THAT WAS NOT SUFFICIENTLY OUTRAGEOUS
TO PRO PROHIBIT FUTURE PROSECUTION OF THE THIS DEFENDANT AND THE, THEREFORE, DISMISS
ALL COUNTS WITH PREJUDICE. IF THIS COURT WERE TO DETERMINE THAT THE -- THERE
WAS NO CONSENT BY THE DEFENDANT TO TERMINATE THIS TRIAL, THE STATE SUBMITS THAT
AS THE -- AS JUDGE ARRE IN THE TRIAL COURT HAD FOUND THAT THERE WAS A MANIFEST
NECESSITY TO DECLARED A MISTRIAL. IT WAS CLEAR AS IT WAS DISCUSSED OFF THE RESTRAINING
ORDER INTRD PLACED ON THE RECORD ON THE DATE OF THE MOTION ON JULY 15TH,
THAT THERE WAS NO ALTERNATIVE THAT THIS COURT -- THE TRIAL COURT COULD SEE GOING
FORWARD TO SOMEHOW SEPARATE THE EVIDENCE OF THE BLOOD ALCOHOL THAT WAS PRESENTED
TO THIS JURY AND COULD NOT AGREE ON A CURATIVE INSTRUCTION. THE STATE WAS PREPARED
TO PROCEED WITH THE TRIAL AT THAT TIME AS THE RECORD BELOW SHOWS. HOWEVER,
IN HIS RECONSIDERATION THE JUDGE FURTHER DELVED INTO THE FACT AS WAS STATED BY
COUNSEL THAT HE DID NOT BELIEVE THAT HE COULD SEPARATE OUT THE BLOOD ALCOHOL
EVEN THOUGH HE IT HAD NOT BEEN PROVIDED TO THE JURY THROUGH EVIDENCE, I KNOW CHIEF
JUSTICE HAD ASKED ABOUT FACTUALLY IT HAD BEEN PRESENTED DURING TRIAL. AT THAT
POINT THE STATE HAD NOT PRESENTED ANY EVIDENCE OF THE BLOOD ALCOHOL CONTENT OF THE
BLOOD. THERE HAD BEEN TESTIMONY, VIDEO, I BELIEVE OF THE DEFENDANT DRINKING
AT A BAR AND TESTIMONY THAT HE HAD BEEN DRINKING THAT NIGHT PRIOR TO THE COLLISION.
THE TRIAL COURT HAD FOUND THAT THERE WAS, IN HIS OPINION, NO
ALTERNATIVE TO GO FORWARD AND THAT MANIFEST NECESSITY WAS PRESENT AND NECESSARY
TO TERMINATE THE TRIAL. HE DID AN ANALYSIS UNDER FARMER AND FOUND THAT
BALANCING ALTHOUGH HE DID FIND INEXCUSABLE NEGLECT BY THE STATE THAT BALANCING
THE INTEREST OF THE PUBLIC AND SOCIETAL INTERESTS IN HAVING THE DEFENDANT
TRIED GIVEN THE SEVERITY OF THE CHARGES IN THIS CASE WHEN HE BALANCED THOSE FELT
THAT DOUBLE JEOPARDY -- THAT PROHIBITING THE STATE FROM GOING FORWARD ON THE
FIRST TWO COUNTS, THE AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER DID
NOT WARRANT THE STATE BEING PROHIBITED FROM FUTURE PROSECUTION OF THOSE COUNTS.
AS TO THE COUNTS AS I HAD STATED EARLIER, THE TRIAL COURT DID
FIND THAT THERE WAS A BRADY VIOLATION AND UNDER HIS ANALYSIS YOU BELIEVE ARIZONA
V YOUNGBLOOD FELT THE PROPER REMEDY WAS TO PROHIBIT THE STATE FROM FUTURE
PROSECUTION OF THOSE COUNTS RELATING TO THE ALCOHOL, THOSE BEING THE VARIOUS ASSAULT
COUNTS AND THE APPELLATE DIVISION UPHELD THAT FINDING FURTHER RULING THAT
THE STATE WOULD BE PROHIBITED ANY TESTIMONY OF ALCOHOL AND THE STATE CONCEDED TO
THAT AND BELIEVED THAT WAS A FAIR REMEDY TO THE DUE PROCESS VIOLATION THAT
BEING THE PERSUADE VIOLATION, THAT THE STATE WOULD BE PROHIBITED FROM GOING FORWARD
ON PRESENTING EVIDENCE THAT THE DEFENDANT WAS DRINKING IN A BAR AND THERE WAS
A VIDEO OF HIM DRINKING IN A BAR, SEPARATE FROM HIS INTO FROM THE HOSPITAL.
SO THE STATE UNDERSTANDS THERE WAS A REMEDY HERE THAT JUDGE ARRE HAD A DECISION
AND -- A DECISION AND A REMEDY JUDGE ARRE HAD FOUND IN TERMS OF BALANCING
UNDER FARMER SOCIETY SIGH TAL INTERESTS, PROTECTING THE DEFENDANT'S INTEREST TO A
FAIR TRIAL. HOWEVER SOCIETY ALSO HAS A RIGHT TO SEE THAT DEFENDANTS ARE
PROSECUTED AND THAT THOSE TRIALS ARE FAIR AND HELD FAIRLY.
JUSTICE WAINER APTER: ARE YOU AWARE OF ANY CASE THAT HAS HELD THAT IF THE NEED
FOR THE MISTRIAL WAS CREATED BY THE BAD FAITH OR INEXCUSABLE NEGLECT DOUBLE
JEOPARDY DOES NOT BAR FURTHER PROSECUTION? LEONARDO RINALDI: I WOULD
STATE THAT THERE NEEDS TO BE INTENT, YOUR HONOR. IT HAS TO BE SOME WILLFUL
MISCONDUCT OR INTENT. JUSTICE WAINER APTER: I ASKED YOUR
ADVERSARY BEFORE ARE YOU AWARE OF ANY CASE THAT THAT IS CREATED A BRIGHT-LINE RULE
THAT IF THERE IS BAD FAITH AND INEXCUSABLE NEGLECT THERE MUST NEVER BE A RETRIAL
UNDER JUBLD AND HE SAID NO. BUT HE'S ALSO NOT AWARE OF ANY CASE EVER FOUND
THAT THAT WAS BAIRJ FOR INEXCUSABLE NEGLECT BUT YET DOUBLE JEOPARDY DID NOT BAR
A RETRIAL. SO I'M ASKING YOU ARE YOU AWARE OF ANY CASE WHERE THE COURT
HAS FOUND THAT THERE WAS BAD FAITH OR INEXCUSABLE NEGLECT ON THE PART OF THE STATE
BUT YET A RETRIAL WOULD NOT VIOLATE DOUBLE JEOPARDY? LEONARDO
RINALDI: I WOULD SUBMIT UNDER BOTH FARMER AND STATE V. LOYAL THAT UNDER THE BALANCING
THAT EVEN IF THERE IS INEXCUSABLE NEGLECT AS JUDGE ARREST FOUND IN THIS CASE
BUT WHEN HE DID BAD FAITH, HIS BAD FAITH ANALYSIS WAS UNDER THE STATE WOULD SUBMIT
UNDER HIS BRADY ANALYSIS IN TERMS OF BAD FAITH AND DUE PROCESS IN TERMS
OF NOT PRESERVING THAT EVIDENCE, NOT AS TO THE DOUBLE JEOPARDY ASPECT IN TERMS
OF THE OVERALL PROSECUTION OF THE CASE. SO I WOULD SAY.
JUSTICE WAINER APTER: FARMER THERE IS THAT LANGUAGE THAT SAYS IF SOME UNSPENT
UNTOWARD AND UNDID HE STIEND CIRCUMSTANCE ARISES WHICH DOES NOT BESPEAK BAD
FAITH INEXCUSABLE NEGLECT OR INADVERTENTLY OR OPPRESSIVE CONDUCT ON THE PART OF THE
STATE. SO THAT'S WHY YOUR ADVERSARY IS ARGUING IF THERE IS INEXCUSABLE
NEGLECT OR INADVERTENTLY OR OPPRESSIVE CONDUCT ON THE PART OF THE STATE THERE CANNOT
BE A RETRIAL. I'M ASKING ARE YOU AWARE OF ANY CASE THAT HAS EVER HELD THAT
EVEN WHEN THERE WAS INEXCUSABLE NEGLECT OR BAD FAITH A RECESS TRIAL COULD PROCEED
AND WOULD NOT VIOLATE DOUBLE JEOPARDY. LEONARDO RINALDI:
I'M NOT AWARE BUT AGAIN I WOULD STATE THAT FOLLOWING FARMER THE STATE IS NOW
PROHIBITED HERE FROM PROCEEDING EVEN WITH THE COURT MAKING THOSE FINDINGS EVER
INEXCUSABLE NEGLECT BECAUSE THERE'S A BALANCING THAT NEEDS TO BE CONDUCTED. THE
TRIAL COURT DID BALANCE SOCIETAL'S INTERESTS ALONG WITH THE OTHER FACTORS
UNDER FARMER AS HAD BEEN ASKED BEFORE, A CONDUCT THAT WASN'T OPPRESSIVE INTENTIONAL
CONDUCT BY THE STATE TO SOMEHOW GAIN AN ADVANTAGE OR SOMEHOW PUT THE DEFENDANT
AT A DISADVANTAGE DURING TRIAL. I WOULD STATE THAT NUMEROUS
OF THE STROILS BY THE STATE THE TYPE OF EVIDENCE IS SOMEWHAT HEAR -- WE HAVE
A SITUATION HERE WHERE THE EVIDENCE ACTUALLY IS BENEFICIAL TO THE DEFENDANT OBVIOUSLY.
THAT'S WHY THE TRIAL COURT HAD FOUND A BRADY VIOLATION. HOWEVER, THE TRIAL
COURT ALSO ANALYZED THE FACT THAT THERE WAS OTHER EVIDENCE OUTSIDE OF SPECIFICALLY
HIS BLOOD ALCOHOL FOR THE STATE TO PROCEED ON. SPECIFICALLY HERE THERE WAS
EVIDENCE THE DEFENDANT WAS DRIVING 88 MILES PER HOUR IN A A 25-MILE PER HOUR ZONE.
THAT CAME STATE FROM THE DATA FROM HIS VEHICLE. THERE WAS TESTIMONY FROM
WITNESSES AT TRIAL THAT THE DEFENDANT HAD PASSED THEIR VEHICLES WEAVING IN AND OUT
TRAFFIC PASSING ON THE RIGHT-HAND SIDE IMMEDIATELY BEFORE THE COLLISION.
THERE'S PHYSICAL EVIDENCE THAT THE DEFENDANT'S VEHICLE HAD, IN FACT, CROSSED THE
DOUBLE YELLOW LINE WHEN IT COLLIDED HEAD ON WITH THE SECOND VEHICLE.
THERE'S ALSO TESTIMONY FROM A PASSENGER WITHIN HIS VEHICLE WHO SURVIVED THE CRASH
WHO WAS AT THE BAR DRINKING AND HAND AND TESTIFIED AS TO THE DEFENDANT'S
CONDUCT PRIOR TO THE COLLISION AND HOW HE WAS OPERATING THE VEHICLE OF THE ALL
THIS WAS BEFORE JUDGE ARRE AND THE TRIAL COURT IN TERMS OF BALANCING AND
MAKING HIS DECISION AS TO WHETHER OR NOT THE STATE COULD PROCEED IN TERMS OF THE
TRIAL, COULD PROCEED ON THE REMAINING COUNTS ON PRETRIAL. I DON'T KNOW IF THAT
COMPLETELY ANSWERS YOUR QUESTION BUT I'M JUST TRYING TO FILL OUT THE STATE'S
POSITION AS TO HOW THE TRIAL COURT BALANCED UNDER FARMER MAKING HIS DECISION
THAT PREJUDICE SHOULD NOT ATTACH TO THE RECKLESS MANSLAUGHTER AND AGGRAVATED
MANSLAUGHTER COUNT. CHIEF JUSTICE RABNER: WITH RESPECT TO THE
ISSUE OF COUNT E KENT ON YOUR BRIEF YOU FOCUSED ON CONSENT AND SAID THERE WAS NO
OBJECTION AND THERE WAS A MOTION TO DISMISS. YOU FOCUSED HERE TODAY MOSTLY ON
THE FAILURE TO OBJECT. THE MOTION TO DISMISS WAS WITH PREJUDICE AS WE KNOW
OF COURSE AND THE DEFENDANT DID NOT PREVAIL. LEONARDO
RINALDI: CORRECT. CHIEF JUSTICE RABNER: ONLY IN PART. DOES
THAT TAKE IT OUT OF THE REALM OF CONSENT? LEONARDO RINALDI: THE STATE
WOULD SUBMIT IT DOES NOT. BY MAKING THAT MOTION TO DISMISS THE INDICTMENT
IT WAS CLEAR THE DEFENDANT WANTED THE TRIAL TO COME TO AN END. AND, THEREFORE,
WAIVED A FUTURE CONTESTED DOUBLE JEOPARDY APPLYING BECAUSE HE HAD TRIED TO
TERMINATE THE TRIAL. CHIEF JUSTICE RABNER: BUT THE MOTION TO
DISMISS WERE MORE THAN THIS TRIAL AND IN THE MOMENT. IT'S THE EVENT TO BE
DISMISSED AND NOT BE RETURNED BACK TO AGAIN. END OF CASE.
LEONARDO RINALDI: RIGHT. EXCEPT THAT I WOULD STATE BY MAKING THAT MOTION TO DISMISS
THE INDICTMENT EVEN THOUGH HE WAS NOT GRANTED WITH PREJUDICE HE HAD THE
OPPORTUNITY TO OBJECT WHILE THAT MOTION WAS BEING ARGUED ON THAT DAY WHEN THE JUDGE
HAD RULED. CHIEF JUSTICE RABNER: DOES THAT MEAN YOUR
ONLY STRENGTHEN IS THE FAILURE TO OBJECT. LEONARDO RINALDI: NO.
I WOULD STATE BASED UPON THE ARGUMENT HE MADE AND BY AFFIRMATIVELY MAKING THAT
MOTION TO DISMISS THE INDICTMENT HE WAS LOOKING TO TERMINATE THE TRIAL.
JUSTICE WAINER APTER: WHY WOULD A MOTION TO DISMISS WITH PREJUDICE BE CONSENT
TO A RETRIAL? IT SEEMS LIKE IT'S ACTUALLY THE OPPOSITE IN THAT HE IS MOVING
TO HAVE A MISTRIAL AND NEVER BE TRIED AGAIN AND YOU'RE SAYING BY FILING THAT MOTION HE
WAS AUTOMATICALLY CONSENTING TO BE TRIED AGAIN. LEONARDO RINALDI:
WELL, I WOULD STATE HIS MOTION TO DISMISS THE INDICTMENT HE WAS FOCUSING ON THE
FACT THAT THE INDICTMENT WAS FLAWED. THE EVIDENCE PRESENTED TO THE GRAND JURY
INCLUDED THE BLOOD ALCOHOL EVIDENCE. AND THAT WITH THAT EVIDENCE BEING PRESENTED
BEFORE THE GRAND JURY THAT THE INDICTMENT WAS FLAWED AND THE GRAND JURY
WAS PREJUDICED BY NOT BEING SEPARATE OUT TESTIMONY THAT THERE, IN FACT, THE
DEFENDANTS, WHAT WE BELIEVED WAS THE DEFENDANT'S BLOOD WILL TESTED FOR
.376. JUSTICE FABIANA PIERRE-LOUIS: TO MOVE TO DISMISS WITH
PREJUDICE MEANS THAT THAT IS IT, THAT'S INDICTMENT IS GONE ON THOSE CHARGES. AND
I'M TRYING TO UNDERSTAND AT WHAT POINT DEFENDANT WAS SUPPOSED TO OBJECT
WHETHER HE MADE HIS ARGUMENT WITH REGARD TO DISMISSING WITH PREJUDICE HE DIDN'T
WIN ON THAT BECAUSE THE TRIAL COURT RULED TO DISMISS WITHOUT PREJUDICE. BUT
THEN FILED A MOTION FOR RECONSIDERATION ONCE AGAIN ASKING THE TRIAL COURT TO
DISMISS THE INDICTMENT WITH PREJUDICE. SO I'M TRYING TO UNDERSTAND AT WHAT POINT
WAS -- WHY IS THE FAILURE TO OBJECT AT SOME POINT DURING THAT SEQUENCE OF
EVENTS WHEN HE MADE THE MOTION FOR A DISMISSAL WITH PREJUDICE AND DIDN'T WIN ON
THAT AND THEN FILED A MOTION FOR RECONSIDERATION.
LEONARDO RINALDI: I WOULD SUBMIT THE RECORD BELOW SHOWS THAT AS THE MOTION WAS
BEING ARGUED AND AS THE STATE CONSENTED TO THE MOTION TO DISMISS THE INDICTMENT,
DEFENSE COUNSEL DID NOT OBJECT ONCE EVEN THE JUDGE -- THE CONSOLIDATE HAD CONCEDED
THE MOTION TO DISMISS THE INDICTMENT. THE COURT: DO YOU SEE
A DIFFERENCE BETWEEN A MOTION TO DISMISS AND A MOTION TO DISMISS WITH PREJUDICE
AND WHAT'S THE SIGNIFICANCE AND IMPACT AND DISTINCTION IF THERE IS ONE?
LEONARDO RINALDI: I WOULD STATE THERE ISN'T A DIFFERENCE IN TERMS OF DURING
TRIAL WITH THAT MOTION BEING FILED BECAUSE IT'S LOOKING FOR A TERMINATION
OF THE TRIAL AT THAT POINT. CHIEF JUSTICE RABNER: AREN'T YOU IGNORING
THE LAST TWO WORDS, WITH PREJUDICE? LEONARDO RINALDI: I'M
NOT. I'M STATING THAT THAT WAS ARGUED, IT WAS ARGUED ON THE DATE OF THE MOTION
TO DISMISS AND DEFENDANT LOST THAT ASPECT OF IT AND AFTER THE FACT FILED A
RECONSIDERATION AS TO THOSE COUNTS. I'M NOT MINIMUM MYING OR DISMISSING THE FACT
THAT HE WAS SEEKING A MOTION OF SMIFRLD WITH PREJUDICE OF THE INDICTMENT.
HOWEVER, I WOULD SUBMIT THAT HE HAD THE OPPORTUNITY ONCE THE COURT HAD RULED THAT
THE MOTION WAS GOING TO BE DISMISSED AND THE TRANSCRIPT BELOW SHOWS THAT
AT THAT TIME HE DID NOT ONLY NOT OBJECT, THE TRIAL COURT. JUSTICE
WAINER APTER: THAT'S ONCE THE COURT RULED, RIGHT. YOU SAID HE HAD THE OPPORTUNITY
TO OBJECT AFTER THE COURT RULED. YOU'RE AGREEING WITH DEFENSE COUNSEL THAT
COURT BASICALLY WENT INTO ITS ORAL RULING, CORRECT? LEONARDO
RINALDI: CORRECT. AFTER THE PARTIES HAD ARGUED THE TRIAL COURT HAD -- WENT INTO ITS
ORAL OPINION, GAVE AN OPINION AT THAT POINT. JUSTICE WAINER
APTER: SO HOW IS OBJECTING AFTER AN ORAL RULING ANY DIFFERENT FROM FILING A MOTION
FOR RECONSIDERATION? LEONARDO RINALDI: I WOULD STATE THAT
AT THAT POINT AND I WOULD SUBMIT THAT DEFENSE COUNSEL COULD HAVE ASKED FOR
AN IMMEDIATE RECONSIDERATION AS THE JURY HAD NOT BEEN DISMISSED AT THAT POINT.
THAT HE COULD HAVE ASKED THE COURT AT THAT TIME TO RECONSIDER HIS DECISION
SINCE THE COURT HAD RULED IT WAS WITHOUT PREJUDICE. HE COULD HAVE ASKED IMMEDIATE
THAL IF THAT IS THE COURT'S POSITION THAT THIS WOULD BE WITHOUT PREJUDICE
WHICH WOULD ALLOW THE STATE A RETRIAL WHICH IS CLEAR FROM THE TRANSCRIPT AS THE STATE
AND THE DEFENSE COUNSEL WENT IMMEDIATELY TO SCHEDULING FOR A RETRIAL AT THAT
POINT. THERE'S DISCUSSION AS TO UPCOMING TRIAL DATES DISCUSSED. SO IT WAS CLEAR
THAT THE TRIAL COURT HAD DISMISSED WITHOUT PREJUDICE AND WAS THE STATE'S INTENT
TO RE-PRESENT THE CASE, RE-PRESENT THE INDICTMENT WITHOUT -- RE-PRESENT THE CASE
WITHOUT THE INCORRECT BLOOD ALCOHOL AND MOVE FORWARD. I WOULD SUBMIT THAT
DEFENSE COUNSEL AT THAT TIME COULD HAVE ASKED THE COURT FOR RECONSIDERATION OR
MORE TIME AT THAT POINT IF YOU PLAN TO PROCEED WITH THE TRIAL.
CHIEF JUSTICE RABNER: YOU COULD ALMOST ALWAYS ASK FOR RECONSIDERATION. THE
PRINCIPLE BASES ARE CONSENT AND FAILURE -- CONSENT AND FAILURE TO OBJECT
IN THIS CASE. AND THE MOTION TO DISMISS. I DON'T UNDERSTAND THE OBJECTION PART
IN THIS REGARD. WERE YOU EXPECTING COUNSEL TO STAND UP AND SAY, JUDGE, I
OBJECTED BEFORE, I WANTED THIS CASE GONE FOR ETERNITY AND THEN STANDS UP AFTER
AND SAY I REALLY MEANT IT. THAT'S WHAT A DISMISSAL WITH PREJUDICE IS. I WANT
THIS CASE GONE, NEVER BROUGHT BACK. AND WOULD THE OBJECTION HAVE BEEN AND
JUDGE I MEANT WHAT I SAID BEFORE? LEONARDO RINALDI: I WOULD SUBMIT
AFTER THE TRIAL COURT RULED IT WAS WITHOUT PREJUDICE HE COULD HAVE ASKED
FOR AN IMMEDIATE RECONSIDERATION AT THAT POINT OR MOVED TO WITHDRAW HIS MOTION TO
DISMISS, GIVEN THE -- JUSTICE FABIANA PIERRE-LOUIS: I THINK
PRACTICALLY DOESN'T MAKE MUCH SENSE. THE MOTION IS MADE, THE MOTION IS
ARGUED SO THE PARTIES INCLUDE DEFENSE COUNSEL MAKES ALL OF HIS ARGUMENTS TO THE
JUDGE. THE JUDGE RIGHT THEN AND THERE RULES AND THEN AGAIN RIGHT AFTER
THE JUDGE FINISHES RULING FROM THE BENCH DEFENSE COUNSEL STAND UP AND SAYS I OBJECT
TO YOUR RULING. LEONARDO RINALDI: I THINK HE COULD HAVE
ASKED -- IT'S THE STATE'S POSITION THAT, AGAIN, DEFENSE COUNSEL WAS LOOKING TO
TERMINATE THE TRIAL AND BY MAKING THAT MOTION HE WAS, THEREFORE, CONSENTING TO
TERMINATION OF THAT TRIELG. CHIEF JUSTICE RABNER: FOR ALL
TIME? YOU'RE LEAVING OUT THE CRITICAL LANGUAGE. LEONARDO
RINALDI: I WAS ABOUT TO SAY THE TERMINATION THEN AFTER THE JUDGE HAD RULED
THAT HE WOULD, IN FACT, GRANT THE MOTION TO DISMISS THE INDICTMENT AND THEN
MOVED ON TO THE WITH OR WITHOUT PREJUDICE. THE FACT THAT DEFENDANT WAS SEEKING
WITH PREJUDICE, AGAIN, I WOULD STATE THAT UNDER THE RULE IT REALLY ISN'T
OF MOMENT THAT HE WANTED THE TRIAL TERMINATED AND THEN COULD AGAIN AS HE DID,
FILE THE RECONSIDERATION AS TO THE DOUBLE JEOPARDY ASPECT WITH PREJUDICE
WHICH HE DID DO. JUSTICE WAINER APTER: WHAT WE'RE TALKING
ABOUT IS CONSENT TO A RETRIAL. HOW IS IT OF NO MOMENT THAT HE MOVED TO HAVE THE
CASE GO AWAY FOREVER? LEONARDO RINALDI: MAYBE SAYING MORE OF A
TIMING ISSUE IN TERMS OF HE WAS LOOKING TO TERMINATE THE TRIAL MID TRIAL
BY MAKING THE MOTION TO DISMISS THE INDICTMENT. WHETHER OR NOT THE COURT GRANTED
IT WITH OR WITHOUT PREJUDICE THE STATE WOULD SUBMIT AGAIN HE WAS LOOKING TO
TERMINATE THE TRIAL THAT'S WHY HE MADE THE MOTION. JUSTICE
FASCIALE: ISN'T YOUR STRONGEST ARGUMENT MANIFEST NECESSITY WITH REGARD TO THE
MISTRIAL? LEONARDO RINALDI: IF THIS COURT FINDS THERE
WAS NOT CONSENT, YES. JUSTICE FASCIALE: YOU HAVE TWO ARGUMENTS.
LEONARDO RINALDI: RIGHT. JUSTICE FASCIALE: ISN'T
YOUR STRONGEST ONE MANIFEST NECESSITY ON THE PART OF THIS TRIAL. FORGET ABOUT
CONSENT FOR A MINUTE. CHIEF JUSTICE RABNER: WE HAVE YOUR POSITION
ON CONSENTS. WE WOULD SUGGEST TO MOVE ON TO MANIFEST NECESSITY.
LEONARDO RINALDI: MANIFEST NECESSITY, YES. AGAIN, IF THIS COURT WERE TO FIND THAT
CONSENT WAS NOT, THE DEFENDANT DID NOT CONSENT TO THE TERMINATION OF TRIAL
MOVING TO MANIFEST NECESSITY, THE TRIAL COURT BELOW WAS CLEAR IN THEIR ANALYSIS
THAT AS NOTED BY THERE WAS DISCUSSIONS OFF THE RECORD THAT WHICH THEN WERE
PLACED BACK ON THE RECORD BY THE TRIAL COURT AT THE MOTION DATE ON JULY 15TH THAT GIVEN
THE CONCURRENT OR THE EVIDENCE THAT HAD BEEN PRESENTED THAT THERE WAS EVIDENCE
THE DEFENDANT WILL BE DRINKING, BOTH BY WITNESSES, VIDEO EVIDENCE, EITHER THOUGH
THE ACTUAL BLOOD ALCOHOL HADN'T BEEN PRESENTED YET DEFENSE COUNSEL HAD OPEN
TO THE BLOOD ALCOHOL AMOUNT. THE STATE HAD ONLY OPENED TO THE FACT THAT IT HAD BEEN
TESTED AND HE WAS ABOVE THE LEGAL LIMIT AND THE ACTUAL NUMBER WAS NOT
PRESENTED TO THE JURY YET THROUGH THE STATE'S CASE. THE TRIAL COURT
FELT THAT THERE WAS NO CURATIVE INSTRUCTION TO SOMEHOW SEPARATE THAT FACT
THAT THEY HAD BEEN TOLD BY DEFENSE ATTORNEY WHAT THE BLOOD ALCOHOL AMOUNT
IS AND PRESENTED OF EVIDENCE THAT HE HAD BEEN DRINKING BY MULTIPLE WITNESSES AND
THEN EFFECTIVELY ASK THEM TO DISREGARD THAT AS THE STATE PROCEEDED WITH ITS
CASE. AS JUSTICE SOLOMON HAD NOTED EFFECTIVELY THE CASE WAS
ABOUT HALFWAY THROUGH AT THAT POINT. THERE HAD BEEN THE TESTIMONY FROM THE
COLLISION BUT NONE OF THE IF YOU WILL TECHNICAL DATA -- JUSTICE
PATTERSON: TESTIMONY FROM THE COLLISION DID YOU SAY? LEONARDO
RINALDI: TESTIMONY FROM THE COLLISION. WITNESSES WHO WERE PRESENT AT THE COLLISION
HAD BEEN PRESENTED. SO THERE WILL BE TESTIMONY FROM THE PASSENGER IN THE
DEFENDANT'S CAR, ONE OF THE PASSENGERS FROM THE VEHICLE THAT WAS STRUCK AS WELL
AS THE OFFICERS WHO ARE ON SCENE AND OTHER DRIVERS WHO WERE OUT THERE WHO
WITNESSED THE DEFENDANT'S OPERATION OF THE MOTOR VEHICLE PRIOR TO THE COLLISION.
THE STATE HAD NOT YET MOVED INTO, IF YOU WILL, THE CRASH RECONSTRUCTION,
DATA FROM THE BLACK BOX FROM THE DEFENDANT'S MOTOR VEHICLE OR FURTHER CRIME
SCENE PHOTOS TO FURTHER ESTABLISH AS I STATED THE CRASH RECONSTRUCTION.
THE STATE AS NOTED WAS PREPARED TO MOVE FORWARD DURING THE TRIAL IF NEED BE. THE
TRIAL COURT'S FEELINGS THAT SOMEHOW ASKING THIS JURY TO DISREGARD BOTH THE
DEFENDANT'S OPENING STATEMENTS REGARDING THE BLOOD ALCOHOL AND THE FACT THAT HE HAD
BEEN DRINKING WHICH WAS ESTABLISHED AGAIN THROUGH VIDEO AND WITNESSES WHO
WERE WITH THE DEFENDANT, THERE WAS NO CURATIVE INSTRUCTION THAT COULD ENSURE A
FAIR TRIAL FOR THE DEFENDANT GOING FORWARD THAT THAT WOULD BE A TAINT TO
ANY VERDICT THAT WAS OBTAINED BASED UPON THAT EVIDENCE EVEN THOUGH AS THE TRIAL COURT
DID ITS BALANCING, THERE'S STONG EVIDENCE OF RECKLESSNESS OUTSIDE OF THE
ALCOHOL. DID NOT SEE ANY TYPE OF CURATIVE CONSTRUCTION THAT COULD BE PRESENTED.
JUSTICE WAINER APTER: DIDN'T THE APPELLATE DIVISION HOLD THAT
A MISTRIAL WAS NECESSARY NOT TO PROTECT DEFENDANTS'S CONSTITUTIONAL RIGHTS BECAUSE
QUOTE A LIMITING INSTRUCTION, THAT DEFENSE COUNSEL WOULD SURELY EXPLOIT?
LEONARDO RINALDI: I WOULD SAY THAT GOES -- THAT WOULD GO TO
OBVIOUSLY TRIAL STRATEGY OF THE OF THE DEFENDANT AND PROCEEDING TO THE TRIAL THAT
DEFENSE COUNSEL HAD THE OPPORTUNITY TO PRESS THIS GAPING MISTAKE IN THE
STATE'S CASE IN ITS INITIALLY INVESTIGATION FROM THE VERY BEGINNING. THAT BALANCE,
HOWEVER, I WOULD STATE THAT LOOKING UNDER THE MANIFEST NECESSITY THAT ANY
CURATIVE INSTRUCTION WOULD OBVIOUSLY -- THERE WOULD BE AN ISSUE WITH THE STATE'S
CASE MOVING FORWARD BUT WE'RE LOOKING AGAIN TO PROTECT THE DEFENDANT'S
RIGHTS AND I DON'T THINK A CURATIVE INSTRUCTION COULD HAVE INSURED -- WELL, WOULD
HAVE AGAIN REMOVED ANY TAINT IF THERE WERE A CONVICTION TO BE OBTAINED BASED
UPON THE OVERALL BLOOD EVIDENCE OF DRINKING THAT NIGHT BY THE DEFENDANT THAT HAD
BEEN PRESENTED BEFORE WE EVEN GOT TO THE ACTUAL BLOOD ALCOHOL TOXICOLOGY
TEST. THE COURT: IS THERE ANYTHING ELSE YOU'D LIKE TO PRESENT?
LEONARDO RINALDI: UNLESS YOUR HONOR, THE JUSTICES HAVE ANY
FURTHER QUESTIONS THE STATE WOULD JUST SUBMIT THAT WE WOULD ASK THIS COURT TO UPHOLD
THE RULING OF THE APPELLATE DIVISION IN TERMS OF FINDING THAT THE TRIAL COURT
WAS CORRECT IN DISMISSING THE ALCOHOL RELATED COUNTS WITH PREJUDICE BUT THAT ALLOW
THE STATE RE-PROSECUTION ON THE RECKLESS MANSLAUGHTER AND AGGRAVATED
MANSLAUGHTER COUNTS. THANK YOU. CHIEF JUSTICE RABNER: THANK YOU.
CHIEF JUSTICE SUTART RABNER: Mr. Cooper-Daub. MR. COOPER-DAUB:
GENERALLY WHEN A CRIM CASE IS TERMINATED MID TRIAL THAT THE EXPECTATION IS THAT A RETRIAL
WILL OCCUR AND THAT WILL OCCUR, THAT CAN OCCUR SO LONG AS EITHER THE DEFENDANT CONSENTS
TO TERMINATING THAT FIRST TRIAL OR THERE'S MANIFEST -- THE JUDGE FIND MANIFEST NECESSITY
TO TERMINATE THAT FIRST TRIAL REGARDLESS IN THAT CASE OF DEFENDANT'S CONSON SO I HAVE
TO JUST FIRST SAY I DON'T AGREE WITH DEFENDANT'S REPRESENTATION THAT IF THIS COURT FIND
FARMER APPLICABLE AND ASSUMING THAT IT FINDS THE JUDGE HERE ABUSED HIS DISCRETION BY FINDING
MANIFEST NECESSITY TO DISMISS THIS INDICTMENT, THAT THE COURT WOULD NOT THEN ALSO NEED
TO LOOK AT KENNEDY. I THINK THE COURT WOULD HAVE TO FIND THAT NIERNL OF THE FARMER TESTS
NOR THE KENNEDY TEST WERE SATISFIED IN ORDER TO REVERSE IN THIS CASE WHEREAS THE STATE
AS LONG AS EITHER IS SATISFIED, AS LONG AS EITHER, THIS COURT AGREES THAT DEFENDANT
CONSENTED OR AGREES THAT THERE'S MANIFEST NECESSITY THAT THE DOUBLE JEOPARDY BAR WILL
NOT APPLY. JUST LOOKING AT THE ISSUE OF CONSENT, I THINK AGAIN IT'S IMPORTANT
TO LOOK AT WHAT THE GUIDING PRIM IS THE THERE IS THE RIGHT THAT'S BEING PROTECT, THE SUB
SOCIETY OF DOUBLE JEOPARDY RIGHTS WHICH DOUBLE JEOPARDY IS TYPICALLY, SECOND PROSECUTION
AFTER ACQUITTAL, OR MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE AND SO THE SORT OF SUB SDID
SID YOURRY RIGHT OF THOSE 3 CORE PRINCIPLES IS THAT THE DEFENDANT HAS A RIGHT IT A VERDICT
FROM A GIVEN JURY OR MAYBE MORE ACCURATELY EXPRESSED AS A RIGHT TO CHOOSE WHETHER TO
COMPLETE A TRIAL WITH A GIVEN JURY OR TO TERMINATE THAT TRIAL EARLY. THAT'S OF COURSE ASSUMING,
THAT RIGHT CAN BE SUBORDINATED TO A FINDING OF MANIFEST NECESSITY SO THAT'S RIGHT THAT IS
BEING PROTECTED SO THE QUESTION IS NOT THEN WHETHER THE DEFENDANT IS CONSENTING TO
RETRIAL. THE QUESTION IS WHETHER THE DEFENDANT IS CONSENTING TO NOT GET A VERDICT FROM
THE JURY THAT'S BEEN IMPANELED AND I THINK HERE IT IS CLEAR THAT THE DEFENDANT DID CON
INTENT WANT THAT AND A COUPLE OF THINGS TO SAY ABOUT THE SORT OF LACK OF OBJECTION. FIRST,
NOTICE OF MOTION AND PROPOSE ORDER SAID WERE SIMPLY DISMISS THE THE INDICTMENT AND I UNDER
THAT IN HIS PAPERS IN ORAL ARGUMENT HE WAS ASKING FOR DISMISSAL OF THE INDICTMENT WITH
PREJUDICE. I'M NOT SAYING HE WASN'T BUT I THINK THAT'S NOT UNUSUAL TO ASK FOR 1 LEVEL OF
RELIEF WITH THE EXPECTATION THAT MAYBE SOME LESSER LEVEL OF RELIEF WILL BE GRANTED. I THINK
IT'S WELL-KNOWN THAT A DISMISSAL OF THE INDICTMENT WITH PREJUDICE. CHIEF
JUSTICE SUTART RABNER: AM I UNDERSTANDING YOU CORRECTLY TO BE SAYING THAT THE ATTORNEY
ASKS FOR DISMISSAL WITH PREJUDICE, THOSE LAST 2 WORDS HAVE NO MINING IN THE ANALYSIS OF
CONSENT. MR. COOPER-DAUB: NOT AT ALL, YOUR HONOR. CHIEF JUSTICE SUTART
RABNER: BECAUSE YOU JUST SAID ALL HE WANTED FOR THIS JURY NOW TO BE EMPANELED NOT TO RETURN
A VERDICT TAUB YES, THAT IS TRUE. CHIEF JUSTICE SUTART RABNER: BUT HE WANTED
MORE AND AS TO THE MORE, YOU'RE SAYING DON'T WORRY ABOUT IT IN TERMS OF YOUR ANALYSIS
OF CONSENT OUR FOCUS IS SIMPLY ON WHAT THIS EMPANELED JURY MIGHT OR MIGHT NOT DO.
MR. COOPER-DAUB: WHAT I'M SAYING THEN YOUR HONOR IS HIS PRIORITY THEN TERMINATING THAT
PROSECUTION AND THAT HE WOULD LIKE DEADLINE OF PREJUDICE BUT HE CERTAINLY AT NO POINT
REPPED THAT HE CAN CLAUSEIVELY WANTED DISMISSAL WITH PREJUDICE. THE COURT:^
WHY DID HE HAVE TO DO THAT. MR. COOPER-DAUB: WELL, IN ORDER TO MAKE IT CLEAR
THAT WHEN THE JUDGE STARTED SAYING I'M GOING TO FIND DISMISSAL OF THE INDICTMENT WARRANTED
BUT NOT WITH PREJUDICE, THAT THE TRIAL COULD THEN BE CONTINUED BECAUSE THAT WOULD BE AL
TERNATIVE. IF HE WANTS -- IF THE QUESTION IS WHETHER THE JURY IS GOING TO CONTINUE AT THAT
POINT, IF ALL HE WANTS IS A DISMISSAL PREJUDICE, THE ALTERNATIVE, IF THAT'S NOT GRANTED,
IS TO CONTINUE WITH THE JURY. CHIEF JUSTICE SUTART RABNER: SO SINCE WE'RE
FOCUSED ON COULD YOU PLEASE'S INTENT HERE, WITH RESPECT TO CONSENT, WHAT DOES IT MEAN
WHEN A LAWYER STANDS UP AND SAYS I MOVE TO DISMISS WITH PREJUDICE. MR.
COOPER-DAUB: I UNDERSTAND IT MEANS THAT THEY ARE ASKING FOR THAT RELIEF. I THINK THAT
DEFENDANT IS TRYING TO COMPARE THIS CASE TO THE NEW YORK CASE DAVIS. IF YOU LOOK AT DAVIS,
WHAT REALLY SETS DAVIS APARTS, I THINK DAVIS WAS VERY INSTRUCTIVE FOR THIS SITUATION BECAUSE
WHAT HAPPENED IN DAVIS WAS DEFENSE COUNSEL MOVED TO DISMISS WITH PREJUDICE SHLG THE TRIAL
JUDGE RESPONDED BY SAYING I'M FG TO GRANT DISMISSAL, I'M GOING TO RESERVE ON A DECISION
WHETHER THE DISMISSAL OF THE INDICTMENT WILL BE WITH PREJUDICE OR WITHOUT AND DEFENSE
COUNSEL IMMEDIATELY SAID WAIT A MINUTE, YOUR HONOR, I WANT TO MODIFY MY PRIOR
REPRESENTATION. I ONLY WANT DISMISSAL WITH PREJUDICE. IF YOU'RE IN THE GOING TO GRANT
THAT I'M GOING TO CONTINUE AND NOT JUST THERE THERE BUT LATER TOO. CHIEF JUSTICE
SUTART RABNER: YOU'RE QUITE CORRECT THAT THE DAVIS CASE SHOWS MORE COULD BE DONE BUT HOW
DOES THAT UNDO YOU THE FACT THAT WHEN AN ATTORNEY STAND UP AND SAYS YOUR HONOR I SEEK
A DISMISSAL WITH PREJUDICE, THAT'S EXACTLY A WHAT THEY MEAN? MR. COOPER-DAUB:
WELL, I THINK IT DOESN'T UNDO. I THINK THERE ARE A COUPLE OF RESPONSES TO THAT. FIRST,
THAT'S STILL A CONSENT TO TERMINATE THAT TRIAL, TO NOT GET A VERDICT FROM THAT JURY WHICH
IS WHAT'S BEING CONSIDERED HERE SO IF THE ALTERNATIVE IS I WANT TO PROCEED WITH TRIAL,
IT SHOULD BE MADE CLEAR UP FRONT SO THE JUDGE CAN ACCOUNT FOR THAT AND IF NOT THERE'S
BASICALLY A VERY BRIEF WINDOW. WELL, FIRST OF ALL, I DO NEED TO POINT OUT THAT WHEN THAT
MOTION WAS ARGUED THE STATE WAS IN FACT MAKING REFERENCE TO THE FACT THAT THE DEFENDANT
WAS CONSENTING TO TERMINATE THE TRIAL AND THE DOUBLE JEOPARDY STANDARD AND THE STATE ARGUES
ET EVEN THOUGH IT'S DEFENSE'S MOTION. THE JUDGE ISSUED AN ORAL RULING BUT OF
COURSE HAD NOT YET AND I UNDERSTAND THAT GENERALLY ONCE A JUDGE RULES FROM THE BIFRM
THAT THE NOT USUALLY A TIME WHEN LAWYERS WOULD BE JUMPING UP TO OBJECT. THAT MIGHT TYPICALLY
BE CONSIDERED RUDE BUT THIS IS A SITUATION WHERE DEFENSE COUNSEL KNEW THAT THE JUDGE
BASED UPON THAT THAT THE JUDGE WOULD RELEASE THAT JURY SO THERE WAS A VERY NARROW WINDOW
OF TIME, WHETHER HE WANTED A VERDICT FROM THAT JURY OR WHETHER HE WAS CONSENTING TO NOT
GET A FINAL JUDGMENT OUT OF THIS TRIAL, THAT WAS THE TIME WHEN IT HAD TO BE RAISED BECAUSE
HE CAN'T. ASSOCIATE JUSTICE LEE A. SOLOMON: SO YOUR BASIC ARGUMENT IS FOR
OUR PURPOSES, ISSUE OF CONSENT ONLY RELATES TO WHETHER HE CONSENTED TO HAVE THAT PARTICULAR
JURY NOT RENDER ITS VERDICT. MR. COOPER-DAUB: YES. ASSOCIATE
JUSTICE LEE A. SOLOMON: WHETHER HE ASKED FOR PREJUDICE, WITHOUT PREJUDICE, WHATEVER.
WUVENS HE SAYS I'M OKAY WITH THAT PARTICULAR JURY NOT HEARING THIS CASE AND DECIDING THE
VERDICT, DOUBLE JEOPARDY IS OFF THE TABLE. MR. COOPER-DAUB: YES, YOUR HONOR,
AND THAT'S NOT TO SAY THAT HE COULDN'T HAVE SAID I WANT DISMISSAL WITH PREJUDICE BUT IF
YOU DENY DISMISSAL WITH PREJUDICE I WANT TO CONTINUE WITH THAT JURY. I THINK A DEFENDANT
COULD ABSOLUTELY MAKE THAT REPRESENTATION. CHIEF JUSTICE STUART RABNER: WE
UNDERSTAND. WE UNDER YOUR VIEW ON THIS ISSUE. MR. COOPER-DAUB: I THINK THE
FAILURE TO OBJECT SHOULD NOT BE VIEWED SIMPLY AS A TECHNICALITY BUT ALSO AS BEING REFLECTIVE
OF DEFENDANT'S ACTUAL POSITION AT THAT TIME BUT EVEN THOUGH HE DID MOVE FOR RECONSIDERATION
HE DIDN'T SAY, JUDGE, I WANT YOU TO RECONSIDER, I REALLY DID WANT TO CONTINUE WITH THAT
JURY. SAID I WANTED YOU TO DISMISS WITH PRIFRP DAYS BASE ON DUE PROCESS VIOLATIONS AND
AGAIN THIS IDEA OF THE JUDGE REALLY UPON DENYING THAT MOTION SHOULD HAVE BROUGHT THE JURY
BACK IN AND CONTINUED THE TRIAL WASN'T EVEN SULGD BY THE DEFENDANT UNTIL SUBJECT THE #58
BREEFLG BEFORE THE APPELLATE DIVISION. ASSOCIATE JUSTICE ANNE M. PATTERSON:
BUT THERE WERE 3 OPTIONS. THERE WAS DENIAL OF THE MISTRIAL AND THEREFORE WE CONTINUE WITH
THIS JURY. THERE WAS A WITH PRECH AND THERE WAS A WITHOUT PREJUDICE AND IT SEEMS THAT
HE CONSISTENTLY WAS SEEKING THE WITH PREJUDICE. SO YOU'RE SUGGESTING HE SHOULD HAVE
MAINTAINED HIS POSITION BY SAYING BUT, IF I DON'T GET WITH PREJUDICE, LET'S CONTINUE WITH
THIS JURY? MR. COOPER-DAUB: I'M NOT ASKING THAT. I AM SAYING THAT AT NO TIME
BEFORE THE TRIAL THAT OR EVEN AN INITIAL BRIEFING BEFORE THE APPELLATE DIVISION DID HE
SAY THAT HE WANTED TO CONTINUE. HE SAID THAT 1 OF THOSE OTHER OPTIONS WAS PREFERABLE.
HE WAS OF HE CONTINUED TO SAY I WOULD LIKE DISMISSAL WITH PREJUDICE BUT THAT WHEN THE
AL TURNTIVE IS TO CONTINUE WITH THE JURY, WHEN WHAT HE'S SAYING NOW IS WHAT THE JUDGE
SHOVE DONE IS CONTINUE WITH THAT JURY, THAT THAT NEEDED TO BE RAIDED BEFORE THE JURY WAS
DFD. CHIEF JUSTICE SUTART RABNER: WHY DON'T WE TURN TO MANIFEST NECESSITY
DAIB YES, YOUR HONOR. SO MANIFESTNESS AT THIS AS WAS COVERED A PARALLEL BASIS FOR PERMITTING
AN EARLY TERMINATION OF A TRIAL WITHOUT RAISING A DOUBLE JEOPARDY BAR MUCH THE JUDGE DID
PROPERLY FIND IN THIS CASE AND WHAT HE WAS FINDING WAS BASED ON, WELL, OF COURSE ON
DEFENSE MOTION, BUT THE IDEA WAS THAT THE GRAND JURY INDICTMENT IN THIS CASE WAS PAL PABLY
DEFECTIVE SO I UNDERSTAND JUSTICE WAYNENER ON MANIFEST NECESSITY AND I DO UNDERSTAND THAT
THE APPELLATE DIVISION WROTE ABOUT PREJUDICE TO THE STATE RURLTING IN MANIFEST NECESSITY.
WITH ALL DUE RESPECT TO THE APPELLATE DIVISION, I THINK THAT THE DISCRETION IN DETERMINING
MANIFEST NECESSITY IS GRANTED TO THE TRIAL JUDGE AND I WOULD ASK THAT THIS KOVRT FOCUS
HERE REMAIN ON THE TRIAL JUDGE'S FINDINGS WHICH WERE ALL ABOUT THE DEFECTS IN THE INDICTMENT
AND THE PREJUDICE THAT WOULD BE CAUSE TO DEFENDANT BY BEING PROSECUTED ON AN
INDICTMENT THAT WAS BASED ON MATERIALLY FALSE EVIDENCE THAT HAD BEEN PRESENTED TO IT.
ASSOCIATE JUSTICE RACHEL WAINER APTER: YOU HEARD ME ASK YOUR COLLEAGUES ALREADY
BUT DO YOU KNOW ANY OTHER CASE THAT HAS HELD THAT THE OR INEXCUSABLE NEGLECT DOUBLE JEOPARDY
DOES NOT BAR FURTHER PROSECUTION. MR. COOPER-DAUB: YOUR HONOR, I DON'T KNOW
A KISS THAT EXPLICITLY SAYS THAT BUT I THINK THERE IS AN EXPLANATION THAT THE MOST OFTEN
WHEN MANIFEST NECESSITY COMES UP. THE WITNESS: MOST OVEN WHEN IT COMES UP
IS WHEN YOU HAVE A HUNG JURY. ASIDE FROM THAT WHEN WE'RE GETTING INTO APP RULINGS ON THIS
ISSUE. THE MOST TIMES WHEN IT COMES UP OF COURSE IS WHEN IT'S BEING CONSIDERED IN THE
CONTEXT NOT OF PREJUDICE TO THE DEFENDANT BUT OF PREJUDICE TO THE STATE OR OF SOME SORT
OF MORE MIECH WAL REASON THAT MAKES THE TRIAL IMPOSSIBLE TO CONTINUE AND SO I THINK THOSE
DISCUSSIONS OF BAD FAITH AND INEXCUSABLE NEGLECT ABSOLUTELY THAT IS SOMETHING THAT CAN BE
CONSIDERED WHEN THE TRIAL JUDGE IN EXERCISING HER DISCRETION AND FINDING WHERE THERE'S
MANIFEST NECESSITY TO TERMINATE A TRIAL BUT I THINK WHERE IT COMES UP IS IN THESE
SITUATIONS WHERE THERE'S SOMETHING THAT'S HAPPENED THAT'S MORE DIRECTLY RELATED BY THE
STATE TO WHAT'S CAUSING THE RESULT SO EITHER BAD FAITH MOST OFTEN COMES UP IN THE CONTEXT
OF IS THE STATE TRYING TO GOAD THE DEFENDANT INTO A MISTRIAL OR EVEN GOAD THE TRIAL INTO
GRANTING A MISS. THE STATE TRYING TO TEE UP FOR A MISTRIAL BECAUSE THE CASE IS GOING VERY
BADLY FOR THE STATE AND THE STATE WANTS TO THAT WOULD COME UP WITH AN I KWILTHS BY DOING
SOMETHING TO TRIGGER A MISTRIAL AND I THINK WHERE WE SEE THE EXCUSABLE NEGLECT COME UP
MOST OFTEN IS IN KASDZ MOST FREQUENTLY HAVING TO DO WITH WITNESS SUICIDE WHEN THEY GET
WILL AND THEY ARE READY FOR THE TRIAL AND THE STATE SAYS OUR STAR WITNESS IS UNAVAILABLE
AND WE DON'T KNOW WHERE THEY ARE AND WE START ASKING WELL, HAVE YOU HOOKED INTO THIS
BEFORE, HAD HAVE YOU TRIED TO PREPARE THIS WITNESS, DID YOU KNOW WHETHER THEY WERE GOING
TO BE UNAVAILABLE OR NOT AND THEN THEY LOOKING AT INEXCUSABLE NEGLECT SO I THINK IT AUCH
IS MORE THINGS THAT TIE IN MORE DIRECTLY TO THE DID THE PROSECUTOR DO SOMETHING THAT'S
REALLY DIRECTLY BRINGING ABOUT THIS NEED FOR A MISTRIAL, THE FACT THAT THE TRIAL CAN'T
GO FORWARD. INSTEAD OF MORE REMOTE THINGS THAT OCCURRED DURING PEAK OPPORTUNITIES DURING
THE INVESTIGATION. SO THE SHORT ANSWER IS I DON'T KNOW A CASE WHERE THEY HAVE -- THERE
HAS BEEN BAD FAITH OR INEXCUSABLE NEGLECT FOUND BUT I DON'T THINK THAT MEANS THAT THAT'S,
THAT THE JUDGE IS MANIFEST MESS AT THIS FINDING IN THIS CASE WAS NOT A PROPER EXERCISE
OF HIS DISCRETION. ASSOCIATE JUSTICE RACHEL WAINER APTER: YOU ACKNOWLEDGE
THAT LATCH DOES EXIST IN FARMER (INAUDIBLE) WHICH DOES NOT SPEAK BAD FAITH, INEXCUSABLE
NEGLECT OR INN ADD VERT TENTS TENSE GOES ON TO SAY JUDGE CAN CONSIDER SO THAT'S WHY I
THINK DEFENDANT IS POINTING OUT THERE IS THIS LANGUAGE IN FARMER. THIS CREATES A BRIGHT
-LINE RULE BUT YOU OF COURSE OPPOSES THAT BUT YOU NURT AWARE OF ANY CASE THAT HAS TAKEN
THAT LANGUAGE OUT. MR. COOPER-DAUB: NO. I WOULD JUST STRESS IN FARMER THAT
QUOTATION SORT OF FALLS IN SEVERAL PAGES ANALYSIS OF DIFFERENT REASONS WHY THERE'S MANIFEST
NESS AT THIS AND WHY A M MISTRIAL MAY NEED TO BE GRANTED WITHOUT A DOUBLE JEOPARDY BAR.
I CERTAINLY RECORDS THAT THAT EXCERPT IS SOMETIMES QUOTE BID COURTS AND AGAIN I DWREE
THAT'S PART OF A PROPER TOTALITY EVIDENT. I DON'T THINK IT'S AN END ALL BE ALL FOR THE
MANIFEST DETERMINATION. I DO WANT TO POINT QUICKLY TO THE DISCUSSION BY DEFENDANT
OF A QUOTATION FROM GREEN ABOUT SORT OF THE PURPOSE OF DOUBLE JEOPARDY TO PREVENT RESULTS
THAT ARE GROSSRY UNFAIR. NOW, GREEN OF COURSE WAS A CASE FROM THE UNITED STATES SUPREME
COURT AND IN FACT THE UNITED STATES SUPREME COURT SUBSEQUENTLY WALKED BACK FROM THAT.
THAT 6 AND THE REASON OF GREEN A LITTLE BIT SAYING YOU KNOW, LOOKING AT, I DON'T THINK
IT WAS THE GREASE U GROSSLY UNFAIR QUOTATION BUT LOOKING AT THE QUOTATION FROM M J ABOUT
HOW THE STATE SHOULD NOT BE ALLOWED TO MAKE REPEATED STAEMENTS FOR HAVING AN INDIVIDUAL
WHO COMMITTED AN, BY EXPOSING HIM AND COMPELLING HIM TO LIVE IN A CONTINUING STATE OF
ANXIETY AND THE UNITED STATES SUPREME COURT, UNITED STATES V SCOTT, 437 U.S. 82 AND THIS
IS A '95, AND 'ANYBODY 96 SO NOW AT FULLER CONSIDERATION WHILE ENTIRELY APPROPRIATE IN
THE CIRCUMSTANCES THAT PASSION PROVOCATION IS NOT A PRINCIPLE WHICH CAN BE EXPAND TODAY
INCLUDE SITUATIONNESS WHICH DEFENDANT'S RESPONSIBLE FOR THE SECOND PROSECUTION, WHAT
THEY MEAN BY THAT IS THAT THE DEFENDANT THERE MOVED TO TERMINATE THE TRIAL BASED ON
PRE-INDICTMENT DELAYS DAYS SO I THE. THEY ARE NOT SAYING THAT THVS DEFENSE COUNSEL WHO
DONE AND IT'S SOMETHING PREJUDICIAL, THEY ARE SAYING THAT DEFENDANT HAD MOVED TO INTEND
THIS PROSECUTION MIDWAY THROUGH AND THAT THEY ARE NOT FINDING THEN THIS SECTION OF GREEN
SHOULD APPLY TO ALWAYS MEAN THAT IT'S -- THAT THERE'S ALWAYS A DOUBLE JEOPARDY BAR IN
THE CIRCUMSTANCE CERTAIN CIRCUMSTANCES. I WILL QUICKLY TOUCH GETTING ON TO THE
SORT OF QUESTION TO -- I THINK THE DEFENDANT'S REQUEST FOR THIS COURT TO BROADEN THE KENNEDY
STANDARD OR BROADEN NEITHER ADOPTIVE JOHNSON RULE OR SOMETHING ELSE GETS INTO A FEW ISSUE
S AND I THINK FIRST THE RULELY KEY 1 IS THAT THOSE CASES IN OTHER COURTS HAVE FOUND THIS,
THOSE CASE RZ STARTING TO CONFLATE DUE PROCESS PR TEXT DZ AND DOUBLE JEOPARDY PROTECTIONS.
THEY ARE NOT THE SAME. THE STATE HAS MANY DUE PROCESS PROTECTIONS. THERE'S OF COURSE A
HUGE BODY OF CASE LAW ON DUE PROCESS AND AN ESTABLISHED STANDARD FOR WHEN DISMISSAL WITH
PREJUDICE IS AN APPROPRIATE RESPONSE TO DUE PROCESS VIOLATIONS. AS JUSTICE WEE ANY
POINTED OUT, THAT WAS DISCUSSED BY THIS COURT IN {U}STATE V. BROWNE{U}. THE APPELLATE
DIVISION HAS ALSO IN SEVERAL MISHD CASES TALKED ABOUT WHETHER -- THE APPELLATE DIVISION
HAS TALKED ABOUT DISMISSAL OF PREJUDICE FOR DUE PROCESS IS USUALLY APPROPRIATE WHEN BASICALLY
THERE IS NO POSSIBILITY OF HAVING A FAIR TRIAL WHERE THE DEFENDANT IN THIS CASE HAS CONCEDED
THERE'S NO DUE PROCESS OBSTACLE THAT HE COULD HAVE A FAIR TRIAL IF HE IS REPROSECUTED
IN THIS CASE. SO THE STATE HAS MANY DUE PROCESS PROTECTIONS WHICH I'D SAY ACTUALLY VERY
WELL PROTECT. THE DEFENDANT:'S RIGHTS IN THOSE CASES AND THE PROPOSAL TO INSTEAD
APPLY THE DOUBLE JEOPARDY BAR TO DUE PROCESS VIOLATIONS IS AN ATTEMPT TO ESSENTIALLY
CIRCUMVENT THESE ESTABLISHED STANDARDS AND CREATE A STANDARD THAT'S EASIER FOR DEFENDANTS
TO MEET. I THINK THERE ARE 2 PROBLEMS WITH THAT IDEA AS WELL. I THINK FIRST
DEFENDANT'S ARGUMENT IS KIND OF REST ON THIS IDEA THAT IT'S INHERENTLY DETRIMENTAL TO
DEFENDANTS TO BE SUBJECTED TO RETRIAL. WHEN IN FACT I THINK THAT VERY OFTEN MISTRIAL AND
RETRIAL IS A CONCRETE BENEFIT TO DEFENDANTS BECAUSE IT SAVES THEM THE TIME OF COMPLETING
THAT TRIAL AND IF THEY ARE CONVICTED GOING THROUGH THE TIME AND EXPENSE OF APPEAL AND
IF THEIR IS YEARS LATER AFTER MUCH LITIGATION AND IF MUCH MONEY SPENT, MONEY AND TIME
SPENT ON THAT SO IF THAT SENSE MISTRIAL AND RETRIAL IS BENEFICIAL TO DEFENDANTS AND
ALLOWING SAYING THERE'S A REALLY BAD PROBLEM IN THIS CASE LET'S FICTION IT NOW INN STD
OF WAY DOWN THE ROAD. THE OTHER KIND OF ISSUE THERE IS THAT AND THIS WAS POINTED
OUT BY--- WELL, I MEAN THIS IS SORT OF THE SAME ISSUE BUT THIS WAS ADDRESSED BY FARMER
AND ALSO THE UNITED STATES SUPREME COURT IN SOME CASE. THEY SAY IF WE'RE GOING TO GRANT
THAT THE, TRIAL JUDGES ARE LIKELY TO BECOME MUCH MORE RELUCTANT TO GRANT MISTRIALS AND
THUS FORCING THE DEFENDANTS, IF DEFENDANTS CAN'T GET MISTRIALS FOR SERIOUS ERRORS AND
QUICK RETRIALS THEN THEY ARE ALL GOING TO BE FORCED INTO THIS AVENUE OF COMPLETING TRIAL,
SEEKING REVERSAL ON APPEAL AND BEING SUBJECT TO RETRIAL MUCH LATER WHICH WOULD BE A DETRIMENT
TO THEM. AND I THINK THAT ALL OF THIS OF COURSE MUST ALSO, SORRY, I SHOULD
JUST SAY DEFENDANT IN RESPONSE TO THE AMICUS BRIEF ON THAT POINT I THINK SAID THAT JOHNSON
PERHAPS SOME OF THESE OTHER STATES HAVE ADOPTED THE STANDARD DON'T JUSTIFY THE DOUBLE
JEOPARDY BAR IN MISTRIAL CONTEXT BUT ALSO FOR REVERSAL ON APPEAL SO ESSENTIALLY THIS IS
BECOMING NOT JUST WELL, DFD TRIAL WAS MAYBE IMPROPERLY GRANTED THEY SHOULD HAVE REALLY
CONTINUED WITH IT SO THERE'S A DOUBLE JEOPARDY BAR OR THIS TRIAL WAS NECESSARY BECAUSE
OF THE STATE'S MISCONDUCT BUT IT STARTS TO BECOME IF THERE'S AN ERROR, IF THERE'S SOME
SERIOUS ERROR BY THE STATE DURING THAT TRIAL THAT THAT BECOMES JUST AN ACQUITTAL AT THAT
POINT. THERE CAN'T BE A RETRIAL AND THERE CAN'T BE -- AND THERE CAN'T BE A RETRIAL AFTER
A MISTRIAL. BUT THAT'S JUST ON AUTOMATIC AKWILTH AND I WOULD SUGGEST THAT WHILE OF COURSE
IT'S VERY IMPORTANT TO PROTECT DEFENDANT'S PRIET. ASSOCIATE JUSTICE ANNE M.
PATTERSON: IT'S A LITTLE MORE THAN A SERIOUS ERROR. I MEAN WE'RE TALKING ABOUT A PRETTY
NARROW CLASS, IN LISTENING TO YOUR SDUGS OF HOW THE STANDARD WOULD AFFECT OTHER CASE DZ,
WE'RE REALLY TALKING HERE ABOUT A NARROW SUBSECTION, A MISTRIAL, AREN'T WE, WHERE
THERE'S INEXCUSABLE NEGLECT JOO. MR. COOPER-DAUB: YES. ASSOCIATE
JUSTICE ANNE M. PATTERSON: ALL THOSE JURY ISSUES AND. IT'S A VERY NARROW CASE. MR.
COOPER-DAUB: THAT'S RIGHT YOUR HONOR MUCH IT IS A NARROW CASE. I WOULD CERTAINLY AGO FOCH
THAT THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON: THEY ARE NOT MANY OF THE --
THERE ARE A LOT OF MISTRIAL CASES BUT VERY FEW THAT DEAL WITH THIS. MR.
COOPER-DAUB: THAT'S RIGHT YOUR HONOR. I THINK 1 OF THE REASONS THE SEVERE RISK AT THE TIME
I'M DESCRIBING IS THAT A TRIAL JUDGE WOULD PRESUMABLY BE COGNIZANT OF THE FACT THAT IF
THEY SAY I'M GRANTING A MISTRIAL BASED ON THIS CONDUCT BY THE STATE BUT I DON'T THINK
IT RICES TO THE LEVEL OF INEXCUSABLE NEGLECT, THEY MIGHT STILL BE HAVING EYE TOW TO WOR
ARE I THAT THE APPELLATE DIVISION, WE, (INAUDIBLE) WE ARE GOING TO SAY. SO I THINK
THAT IT WOULD GIVE SORT OF FORCE, WELL, IT COULD END UP WITH TRIAL JUDGES.
ASSOCIATE JUSTICE ANNE M. PATTERSON: HAVE A BROAD WRER. MR. COOPER-DAUB: CUT
A BROADER SWATH POTENTIALLY BECAUSE EVEN THOUGH THE TRIAL JUDGE ANTICIPATES THERE WOULD BE
A RETRIAL COULD ACTUALLY END UP BEING THE EQUIVALENT OF AN ACQUITTAL SO FOR ALL THOSE
REASONS SHS UNLESS THERE ARE ANY OTHER QUESTIONS, YOUR HONORS, THE ATTORNEY GENERAL WOULD
ASK THIS COURT COURT TO OBJECT THE DEFENDANT'S ARGUMENT AND AFFIRM THE ORDERS BELOW.
CHIEF JUSTICE SUTART RABNER: THANK. CHIEF JUSTICE RABNER: IN A
CASE LIKE THIS WHERE A JUDGE IS CONCERNED HAVE YOU SERIOUS CHARGES THERE'S
EVIDENCE OF RECKLESS CONDUCT THAT RESULTS IN DEATH, INDEPENDENT OF ALCOHOL EVIDENCE, IS
THERE A WAY THAT A TRIAL JUDGE COULD A PATH TOWARD THE TRIAL ON THE NON-ALCOHOL
RELATED COUNTS SHORT EVER CONTINUING THE ORIGINAL TRIAL, GETTING REVERSED ON APPEAL
THE LIKELY OUTCOME AND HAVING IT RETURN FOR RETRIAL, IS THERE SIMPLY NO
REMEDY AT ALL. SCOTT M. WELFEL: IS YOUR HONOR ASKING ABOUT
WHETHER THE JUDGE COULD HAVE DONE ANYTHING DIFFERENT IN THE MOMENT A RULING WHEN
THE JUDGE DISMISSED WITHOUT PREJUDICE, THAT MOMENT IN TIME? THE
COURT: IS THERE ANY WAY FOR A JUDGE FACED WITH THESE SORTS OF CIRCUMSTANCES TO
SALVAGE THE TRIAL? SCOTT M. WELFEL: I'M NOT HERE TODAY SAYING
SPECIFICALLY THAT THERE WAS ANY SPECIFIC COURSE OF CONDUCT THE COURT SHOULD
OR COULD HAVE TAKEN. CHIEF JUSTICE RABNER: NO, YOU'RE NOT.
YOU'RE SWINGING FOR THE FENCES AND I RESPECT THAT. I'M R I'M ASKING IF AS YOU UNDERSTAND
THE LAW IS THERE A PATHWAY FOR A CASE LIKE THIS TO BE RETRIED OR MUST IT RESULT
IN DISMISSAL END OF CASE? SCOTT M. WELFEL: OUR POSITION IS THAT
IF THE REASON THERE WAS NO WAY FOR THE COURT IT SALVAGE THE TRIAL AT THAT
POINT AT THIS POINT ORIGINATE WITH THE STATE'S'S INEXCUSABLE NEGLECT.
CHIEF JUSTICE RABNER: IF THE JUDGE HAD DENIED YOUR MOTION AND CONTINUED THE
TRIAL, CONVICTION, REVERSE ALL ON APPEAL COULD THAT CASE BE RETRIED?
SCOTT M. WELFEL: AT THIS POINT IN TIME WE ARE NOT ASKING THIS COURT TO ISSUE
ANY RULING REGARDING HOW DOUBLE JEOPARDY APPLIES AFTER A CONVICTION. IN BROWN
THIS COURT DIDN'T REJECT THE IDEA THAT DOUBLE JEOPARDY COULD APPLY AFTER A CONVICTION
ALTHOUGH IT DID NOT RULE ON DEFENDANT'S FAVOR BECAUSE THERE WAS NO ALLEGATION
OF WRONGDOING BY THE STATE IN THAT CASE. I DON'T THINK THE COURT NEEDS TO REACH
THAT QUESTION. I WILL SAY EVEN BEYOND THE SEVEN STATES THAT HAVE DEPARTED
FROM KENNEDY ALL OF WHICH DO APPLY THE SAME STANDARD FOR A MISTRIAL OR A REVERSE
ALL AFTER CONVICTION WHEN IT'S PROSECUTORIAL MISCONDUCT THAT CAUSED
THE ERROR. EVEN BEYOND THOSE, THE SECOND CIRCUIT, AND THE SEVENTH CIRCUIT, HOLD
THAT KENNEDY ITSELF SHOULD APPLY WHEN REVIEWING A CONVICTION AFTER APPEAL
AND REVERSING. CHIEF JUSTICE RABNER: I KNOW YOU'RE NOT ASKING
FOR A RULING IN THIS CASE ON THIS. I'M ASKING INSTEAD DO YOU HAVE A POSITION ONLY
BEHALF OF THE PUBLIC DEFENDER ON THIS QUESTION NOW. SCOTT M.
WELFEL: I DON'T HAVE A POSITION ON BEHALF OF THE PUBLIC DEFENDER. I DO THINK IT IS
LOGICALLY CONSISTENT TO APPLY THE SAME RULE THE WAY THAT THE NON--- THE
SECOND CIRCUIT, THE SEVENTH CIRCUMSTANCE CUT I BELIEVE IS THE FIRST CIRCUIT AS
WELL. WHAT THEY SIGH IS THEY BEEN EXTEND KENNEL DEE SO IT'S NOT JUST WHERE
THE PROSECUTOR SUSPENDED TO GO TO MISTRIAL. IT'S WHERE THE PROSECUTOR INTENDED
TO UNFAIRLY SECURE A CONVICTION. I THINK THAT MAKES SENSE. I THINK THAT SOLVES
THE -- ONE OF THE INCONSISTENCIES OF KENNEDY. SO I THINK IT IS LOGICALLY
CONSISTENT TO APPLY THE SAME OR SIMILAR STANDARD. MY CLIENT DOES --
JUSTICE PATTERSON: THEN IT MAKES KENNEL DEE INEXCUSABLE NEGLECT SETTINGS?
SCOTT M. WELFEL: NO. THE SEVEN -- THEY APPLY THE STANDARD AS TO A MISTRIAL
MOTION AS TO REVERSAL ON APPEAL. OF THE STATES THAT DON'T PURPORT TO DEPART
FROM KENNEDY, INCLUDING SOME CIRCUITS, THEY ORIGINAL NAIL WITH WALL LICK AND -- I
APOLOGIZE I DIDN'T CITE WALL LICK IN THE BRIEF. BUT BATS DOES DRAW FROM
WALL LICK WALLACH WHICH IS IN THE CALIFORNIA ON BEHALF OF THE CASE. THAT'S THE
SECOND KALTS. THEY APPLIED KENNEDY ITSELF SLIGHTLY MODIFIED TO REVERSAL AFTER
CONVICTION AS WELL. IF THE PROSECUTOR INTENDED TO GO TO MISTRIAL OR INTREPD TO DO
SECURE A CONVICTION INTENTION THAEL THROUGH MISCONDUCT. SO I'M JUST SAYING
I THNK LOGICALLY MAKES SENSE TO APPLY THE SAME PRINCIPAL AS MANY COURTS HAVE RECOGNIZED.
I'M NOT ASKING FOR THAT HERE. THIS COURT DOESN'T NEED TO REACH THAT QUESTION
HERE IS ALL I'M SAYING. CHIEF JUSTICE RABNER: PLEASE CONTINUE.
SCOTT M. WELFEL: THE TWO POINTS I WANTED TO MAKE. I WILL HAVE
BEEN VERY BRIEF. WITH RESPECT TO YOUR HONOR ALSO QUESTION EARLIER REGARDING
PREJUDICE TO THE DEFENDANT ON RETRIAL. I WOULD JUST DIRECT THIS COURT A NUMBER
OF CASES WHERE THAT'S NOT REALLY A CONSIDERATION AT ALL. IN LOVE, A THIRD
CIRCUIT CASE THAT WHICH HELD RETRIAL IS BARRED. IT WAS THE JUDGE'S
MOTHER-IN-LAW PASSED AWAY AND SO THE JUDGE GRANTED A MISTRIAL WITHOUT LOOKING FOR
POTENTIAL ADJOURNMENT OR LOOKING FOR RESIGN MENT. THERE WAS NOT GOING TO BE ANY
PREJUDICE TO DEFENDANT ON RETRIAL OTHER THAN HAVING TO GO THROUGH ANOTHER
TRIAL. THAT DIDN'T CARRY THE DAY. THE SAME THING WITH SCAYC FROM THE FOURTH CIRCUIT
WHAT CAUSED THE MISTRIAL WAS THE STATE'S WITNESS NOT BEING AVAILABLE.
CHIEF JUSTICE RABNER: OUR CASE LAW DOES HAVE THAT AS A FACTOR.
THAT'S WHY I WAS ASKING WAS THERE A CIRCUMSTANCE LIKE THE ONE YOU JUST MENTIONED,
THEY LOST A WITNESSES, SOMETHING HAPPENED THAT PUT THEM IN A DIMINISHED
POSITION TO DEFEND THE CASE IF IT WERE TO BE RETRIED. SCOTT M.
WELFEL: WHAT I DIDN'T SAY EARLIER THAT I WOULD SAY NOW IS WE DON'T KNOW WHAT THE STATE
IS GOING TO DO BY DETECTIVE BISONE'S IF ANY AT THAT POINT COLLISION REPORT
WHICH RELIED ON ALCOHOL IN REACHING THE CONCLUSION THAT THE DEFENDANT WAS RECKLESS
T SAID WITH A REASONABLE DEGREE OF SCIENTIFIC CERTAINTY, SO IF HE REVISE
IT TO ELIMINATE ALCOHOL HOW IS DEFENSE COUNSEL EFFECTIVELY SUPPOSED TO CROSS-EXAMINE
AND IMPEACH THE DETECTIVE. AND SO DEFENDANT'S ABILITY TO EFFECTIVELY
CROSS-EXAMINE THE STATE'S EVIDENCE WITHOUT OPENING THE DOOR FOR THE STATE TO THEN
GET AROUND THE APPELLATE DIVISION RULING AS TO WHAT DUE PROCESS REMEDY WAS
REQUIRED I THINK IS AN ISSUE. AND THEN SECOND JUST FINISHING ON FARMER
IN WHETHER THERE'S A BRIGHT-LINE RULE, SO IN MY REPLY TO THE AMICUS ATTORNEY
GENERAL BRIEF I DO BELIEVE FARMER IS APPLIED T DOES SEEM TO BE AS IF WERE A
BRIGHT-LINE RULE EVEN IF NOT ARTICULATED AS SUCH. SO IF WE LOOK AT DUNN
S, STATE V. DUNNS AN APPELLATE DIVISION CASE HERE. THE APPELLATE DIVISION SURVEYS
NUMEROUS STATE AND FEDERAL CASES REGARD SPECIFICALLY THE UNVANLT OF A STATE'S.
THE WITNESS: THAT CAUSED THE MISTRIAL. THE GENERAL RULE IS
IT TH MANIFEST NECESSITY EXISTS FOR A MISTRIAL. AND THE COURT SPECIFICALLY FOUND
THAT DISTINGUISHABLE FROM DOWNHAM OR SUBSTANTIALLY WHERE THE UNAVAILABILITY
OF THE PROSECUTOR WITNESS WAS DUE IN SOME PART TO THE PROSECUTO'S NEGLECT OR LACK
OF PREPARATION. I THINK THE REASON IT MAKES SENSE TO THINK OF IT IF PHOTO
A STRICT STRICT BRIGHT-LINE RULE IS SOMETHING AKIN TO THAT. THE STATE COULD
CREATE MANIFEST NECESSITY THROUGH ITS OWN INEXCUSABLE NEGLECT AND THEM GET
A DO-OVER, A SECOND BITE AT THE APPLE BECAUSE OF ITS OWN INEXCUSABLE NEGLECT.
JUSTICE SOLOMON: EXCEPT THAT HERE THE HOSPITAL MADE THE MISTAKE.
THE NEGLECT HERE WAS THAT THE INVESTIGATOR DIDN'T REALLY IT UNTIL THEY WERE ON
TRIAL AND THEY FINALLY COMPARED THE NUMBERS AND THE DATES. IN OTHER
WORDS, AS I UNDERSTAND IT THE NURSE RIGHT UP TO AND INCLUDING TRIAL MAINTAINED THEY HAD
THE RIGHT SAMPLES. SHE NEVER CONCEDED THAT IT WAS THEIR MISTAKE. BUT IT WAS
N THE HOSPITAL'S MISTAKE. SCOTT M. WELFEL: A FEW THINGS.
UNDOUBTEDLY THE ERROR ORIGINATED WITH THE HOSPITAL. I DON'T THINK THAT EXCUSES
THE DETECTIVE FROM FAILING TO LOOK AT THE FILES. JUSTICE SOLOMON:
CLEARLY HE WAS NEGLIGENT IN SOME WAY. THAT'S PART OF TRIAL PREPARATION. I'M
GIVING HIM THE BEVERAGE. SCOTT M. WELFEL: THE STATE CONCEDED GROSS
NEGLIGENCE ON PAGE 35. AT YOUR HONOR'S POINT REGARDING -- IT WASN'T THE
NURSE WHO INSISTED IT WAS THE RIGHT BLOOD. I THINK IT WAS THE DIRECTOR OF THE
-- DIRECTOR CARDONA OR SOMETHING. BUT LET'S ALL BE CLEAR IT'S PROBABLY
TO AVOID LIABILITY IN THIS CASE. AND THE COURT SAID IN ITS MISTRIAL RULING I COULD
-- I TOLD THE STATE I COULD CONSIDER ORDERING THE HOSPITAL PERSONNEL DOWN
HERE. I PRESUME I WOULD BE MRET WITH THE HOSPITAL'S LAWYERS AND, THEREFORE, AND
DECIDED NOT TO DO THAT: JUSTICE FASCIALE: WOULD BARRING THE
STATE'S EXPERT CURE THE INABILITY TO CROSS? SCOTT M. WELFEL:
THAT'S NOT REALLY AN ISSUE BEFORE THIS COURT. THAT, AGAIN, I THINK DO THINK
WOULD GOES MORE TO DUE PROCESS THAN TO DOUBLE JEOPARDY. WHAT WE APPEALED FROM FROM
THE APPELLATE DIVISION WAS THE DOUBLE JEOPARDY RULING. SO I DO THINK THERE ARE
OTHER CONSIDERATIONS REGARDING PREJUDICE ON RETRIAL. THAT'S NOT NECESSARILY
BEFORE THIS COURT. I'D BE LEAP TO BRIEF IT IF THIS COURT WOULD LIKE BUT.
JUSTICE FASCIALE: THE ONLY REASON WHY IT'S A QUESTION IS BECAUSE YOU SAID
THAT'S THE PREJUDICE, THE DEFENDANT'S INABILITY TO CROSS-EXAMINE STATE'S
EVIDENCE WITHOUT RAISING ALCOHOL. SCOTT M. WELFEL: THE PREJUDICE
IS NOT A PRIMARY CONSIDERATION IN DOUBLE JEOPARDY. THAT WAS MY ATTEMPT
TO ANSWER THE CHIEF'S QUESTION. AND I THINK JUST -- MY FINAL STATEMENT IS WHETHER
IT'S THE STATE'S INEXCUSABLE NEGLECT THAT MAKES IT IMPOSSIBLE FOR THE DEFENDANT
TO GET A FAIR TRIAL IN THAT PROCEEDING, THEN THE STATE HAS TAKEN AWAY THE DEFENDANT'S
OPTION TO GO FORWARD TO THAT JURY AND THAT'S WHY THIS IS AT THE HEART OF
THAT DOUBLE JEOPARDY PROTECTION AND WHY THIS COURT SHOULD HOLD DOUBLE JEOPARDY
BARS RETRIAL IN THIS CASE. UNLESS THE COURT HAS ANY FURTHER QUESTIONS.
CHIEF JUSTICE RABNER: THANK YOU. MR. WELFEL. THANK YOU TO ALL COUNSEL.
WE'LL TAKE THE MATTER UNDER ADVISEMENT.