When the State Prosecuting Attorney applied for review of Ex parte George, 41 S.W.3d 241, the concern was that a trial judge for any reason satisfactory to himself might choose to inject error into a case with intent to cause a mistrial (and bar retrial of the case). That appears to remain the law, though I see Bauder itself is once again being scutinized in Peterson (Hurray!). In Hill, No. 1385-01, (delivered today) the CCA acknowledges that its prior case law implied "that a trial cannot proceed with eleven jurors unless the defendant consents". While not shown by the record, the court was willing to assume, as the State asserted, that (1) the defendant had refused to consent to proceed with 11 jurors after one claimed to be too emotionally disturbed to hear the evidence and (2) the defendant refused to move for a mistrial. The trial judge likely thought these were the only options. See Hegar, 11 S.W.3d at 294. Yet, the CCA holds the trial judge clearly abused his discretion by dismissing the jury sua sponte. One wonders how the trial judge was to predict that the court would say art. 38.29(a) mandated proceeding without the consent of the defendant (something no court had previously held). In the old days, the decision to start over would have been entitled to "great deference". Plunkett, 883 S.W.2d at 354. The court loses sight of the principle at work, namely that the double jeopardy clause was designed only to allow a defendant to continue with the selected jury if they so wish. I have to doubt Hill desired to proceed with the disabled juror any more than anyone else. If that was not what he demanded then by default he was consenting to the court's alternative proposal of a mistrial. U.S. v. Dinitz, 424 U.S. at 607. This is clearly a case where the defendant's valued right to have his trial completed by a particular tribunal was subordinate to the public's interest in fair trials designed to end in just judgments. Our highest court should recall that a defendant's double jeopardy interests do not go so far as to compel society to so mobilize its decision making resources that a defendant is assured a single error-free trial. The trial judge at worst negligently caused a mistrial because he misconstrued a statute or some cases. The public should not pay the penalty for such error, especially when in truth the defendant did not want to proceed with his selected jury and would not agree to be forced by statute or otherwise to a different panel. 38.29 is a good law, but it certainly leads to a terrible result in this case.
[This message was edited by Martin Peterson on 11-09-02 at .]
How hard could it have been for the judge to ask the defendant on the record if he wanted to proceed with 11 jurors or have a mistrial? Too often, stuff happens in the judge's chambers and never makes it to the record. Prosecutors should resist the secret meetings in the judge's chambers. Make the judge do his work in public. Your appellate lawyers will thank you.
John Bradley District Attorney Williamson County, Texas
