I tried a defendant last October for 1st degree murder. The jury hung (defendant moved for mistrial). The case has come back up for retrial and I just received the record of the defendant�s prior testimony. After reading his testimony and depending on what part/variation the jury believes, there is enough to indict and try him for Capital Murder.

The defendant has been in jail on the murder charge as well an Aggravated Robbery and two burglaries (all unrelated) since May 2003.

I want to dismiss the pending murder and reindict as a capital and try as a �mini cap�. I think this will give me some help with an indecisive jury. This will not sit well with the Judge and I expect the defense attorney to object to the dismissal. If the Judge refuses to �consent� to the dismissal and sign it, can he force me to try the 1st degree murder or can I mandamus him to force his �consent�? Like John, I think that his signature should be a ministerial act. Does anyone see any other potential problems with this tact (jeopardy, collateral estoppel, etc)?

A judge has to sign off on a nolle and you can't mandamus the judge on that issue. Try to work with your judge. If you need to and the judge won't sign the nolle, file the capital and "elect" to go to trial on the capital.

Assuming Capital Murder, you must have some bad facts. Why are you increasing your burden, ulcer and depletion of county resources (usually a concern in a small county). Why not try him for murder, get your conviction, and put on one hell of a punishment hearing!! If they won't convict of murder, what makes you think they would convict of Capital Murder? I'm not trying to sound rude, I am just wondering the theory you have.

Why would a mini-cap increase the cost to the county? Mini-cap means you waive the death penalty. Once the guy's convicted there is no punishment phase. And you pick the jury exactly the same way as you would in a straight murder. The defense attorney can't stop you from re-indicting under a different offense. We had a thread on this forum once before about whether the judge's approval is required to dismiss. We all seemed to agree that it should really be a ministerial act for the judge to do so but the statute seems to require the judge's approval. You've got a real problem if the judge will not agree because even if you indict on the cap I assume your judge sets the docket and could force you to try the older case first. You can't really refuse in these circumstances because if you just didn't show up a directed not guilty would bar your cap. Only way out I see is to talk to the judge about it and try to get some agreement ahead of time.

No exception taken. It is not any more difficult to try a 'mini capital' waiving death penalty than a first degree murder nor will it cost anymore. This case involves a duress defense that several jurors bought into. If you believe the defendant's confession, the victims son made him commit the murder including giving him consent to enter the residence. We believe the defendant entered the house to commit a burglary and surprised the owner and killed him. At the first trial, the jury only had Guilty and Not Guilty to choose from. The case was initially indicted as a 1st degree using the stategy you laid out. I'm just wondering if giving them capital murder, murder and not guilty wouldn't create room for compromise.

Okay, when put that way it sounds like a strategically sound decision.