Petition for Writ of Certiorari — Gorwell v. Maryland
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FIL’ D
OB 950 ocr 17 199%
: QRECE Pi Tit G.iak
IN THE
Supreme Court of the United States
October Term, 1995
EDWARD T. GORWELL,
Petitioner,
Vv
STATE OF MARYLAND,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
PETITION FOR WRIT OF CERTIORARI
Henry Lee Belsky*
Kimberly A. Kelly
Schlachman, Belsky & Weiner, P.A.
207 East Redwood Street
Ninth Floor
Baltimore, Md. 21202
(430) 685-2022
Attimeys for Petitioner
*Counsel of Record
QUESTION PRESENTED FOR REVIEW
Whether the Fifth Amendment protection against double
jeopardy is violated when retrial is permitted after the State
causes a mistrial by refusing to consent to a jur, ~f less than
twelve under Maryland Rule 4-311(b) without satisfying its
constitutional requirement of demonstrating a manifest necessity
for causing the mistrial.
(i)
PARTIES IN THE PROCEEDINGS BELOW
STATE OF MARYLAND,
Complainant-Appellant,
Vv.
EDWARD T. GORWELL,
Defendant-Appellee.
Case No. 193118001
None of the parties is a private business entity either
publicly traded or privately held.
(ii)
=e _
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- UP”
|
Page
a Re i
Parties in the Proceedings Below ..................... ii
I Du. ck cv oeic Olecee. vi
EE l
Jurisdictional Statement ........................... ]
Constitutional Provisions .......................... 2
ee 3
EE 3
Reasons for Granting the Writ ..................... 15
THE FIFTH AMENDMENT PROTECTION
AGAINST DOUBLE JEOPARDY IS
VIOLATED WHEN RETRIAL IS
PERMITTED AFTER THE STATE CAUSES
A MISTRIAL BY REFUSING TO CONSENT
TO A JURY OF LESS THAN TWELVE
UNDER MARYLAND RULE 4-311(B)
WITHOUT SATISFYING ITS
CONSTITUTIONAL REQUIREMENT OF
DEMONSTRATING A MANIFEST
NECESSITY FOR CAUSING ’- THE
SO TO er 15
A. The Court of Appeals rendered Maryland Rule
4-311(b) unconstitutional in holding that no
requirement exists which mandates the State to
justify its decision to insist upon twelve jurors
and camne © GUE. > 6.8 > 6 irda torcew’ exsinees 17
B. In assuming arguendo that the State was
required to demonstrate a manifest necessity for
the mistrial, the Court of Appeals erred in
concluding that the burden was satisfied ........ 21
1. The Court of Appeals erred in refusing
to find a compelling situation of
prosecutorial misconduct which
warranted the constitutional double
jeopardy protection.................. 22
2. The Court of Appeals erroneously
opines that the public's perception of
justice warrants manifest necessity for a
SON .... 36 ht od aiawns aah arene: 24
3. The Court of Appeals erred in declaring
the remaining jury panel of 11 a new
OE... 25 SFE o EA Ch ce ss 25
4. The Court of Appeals erroneously gives
credence to the unfounded assertion that
the remaining jury panel was tainted
simply by the loss of one juror ......... 26
C. The Court of Appeals’ decision is inconsistent
with similar constitutional interpretation of
peremptory challenge rules.................. 27
(iv)
D. The holding of the Court of Appeals creates
conflicting law among states
oe eR
(v)
ee £Ceeeseeoeeeneewvwas
2.9 4.0.8 6.0.8 °s 6 2 + .5.4.0 4
TABLE OF CITED AUTHORITIES
Cases Cited: Pages
Arizona v. Washington,
4348. GT Gee .6sitiae eee 18, 19, 27
Batson v. Kentucky,
416 U.S. SUMS NA RRS B.. 27
Benton v. Maryland,
395 U.S. 764 (190 ss 4 ATR... 18
Bichon x. Gaal
347 S.E.2d 350 (Ga. App. 1986) ...........0. 0000 ee 28
Downum v. United States,
372 U.S. 734, THC «oO. eee 19, 23
Georgia v. McCollum,
$05 U.S. 42 (O00... a ee ee 27
Gilchrist v Marland
627 A.2d 44 (Md. App.),
cert. granted, 633 A.2d 102 (Md. 1993) ............. 27
Green v. United States,
355 U.S. 186 (1987) >. eee et. 18
Chechens» Teele ep ;
423 P.2d 474 (Okla. Crim. App. 1967) ........... 28, 29
Iinois v. § ,
410 U.S. 498 C0979) <5 I aa eda: 25
In re Mark R.,
Ee ee ae 18, 19
Maryland v. Gorman,
Spee FOOD fo. Wis. 27
Maryland v. Kenney,
i 21
New Jersey v. Romeo,
203 A.2d 23 (N.J. 1964),
Ds 6 bc os OS DU e'S sie Sawa bese 28
Oregon v. Kennedy,
Tne 22
Oregon v. McFerron,
628 P.2d 440 (Or. 1981),
review denied, 634 P.2d 1346 ..................... 28
5 ‘United $
RE 20
Tyler v. Maryland,
ES) 27
United § v. Dini
Ee 18
United States v. Jorn,
ee 23
Wade v. Hunter,
ee ees 18
Ward v. Maryland,
GF AB Fee ee BOSE) oo ete. MOE ALAS 18
Will Florid
Pe ee Pix o's vce s bclpdede dd) Ratctka dts 20
Constitutional Provisions:
it fe F & , ee oe See eee 21
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
EDWARD T. GORWELL,
Petitioner,
Vv
STATE OF MARYLAND,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
OPINIONS BELOW
The Memorandum and Order of the Circuit Court of
Maryland for Baltimore City regarding Edward T. Gorwell's
Motion to Dismiss for Double Jeopardy, is dated November 19,
1993, and appears in case number 193118001.
The Opinion of the Court of Appeals of Maryland,
dated July 19, 1995 and captioned as
appears at 339 Md. 203, 661 A.2d 718
(1995).
JURISDICTIONAL STATEMENT
The final judgment of the Court of Appeals of Maryland,
of which review is sought, was entered on July 19, 1995.
Retrial has been stayed by order of the Circuit Court of
Maryland for Baltimore City dated August 21, 1995 pending
final disposition of this case in the Supreme Court of the United
States. Review is sought by way of a Writ of Certiorari
pursuant to Supreme Court Rule 13 and 28 U.S.C. §1254 (1).
]
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V.:
[AMENDMENT V]
[Rights of Accused in Criminal Proceedings]
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of
War or public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public
U.S. Const. amend XIV.:
[AMENDMENT XIV]
Section 1.
[Citizenship Rights Not to Be Abridged by States]
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall bridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law, nor deny to any person within its jurisdiction the
equal protection of the laws.
U.S. Const. art. VL:
ARTICLE VI.
[Supremacy Clause]
This Constitution, and the Laws of the Untied States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the
2
0 OO ee
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any state to the Contrary
notwithstanding.
Md. Rule 4-311(b):
Rule 4-311. TRIAL BY JURY
(b) Number of Jurors. - A jury shall consist of 12
persons unless the parties stipulate at any time in writing or on
the record that the jury shall consist of any number less than 12.
STATEMENT OF THE CASE
On April 17, 1993, Edward Gorwell, a white Baltimore
City Police Officer, was pursuing several fleeing suspected car
thieves when he perceived a gun shot being fired upon him and
accordingly, returned fire. The single shot fired by Officer
Gorwell struck and killed Simmont Donta Thomas, an African
American youth who was one of the individuals suspected of
car theft.
Officer Gorwell was subsequently indicted for
manslaughter and tried before a jury in the Circuit Court for
Baltimore City. The trial began on July 27, 1993 and although
evidence concluded on August 3, 1993, summation did not
begin until the morning of August 5, 1993 due to other
commitments of the trial court. On the afternoon of August 5,
1993, the jury began its deliberations. After approximately five
and one half hours of deliberation, the jurors were released and
ordered to return the following morning to continue.
On Friday August 6, 1993, at approximately 10:10 a.m.,
the trial court was informed that only 11 jurors had returned to
continue deliberations and that Juror No. 2, Malcolm Boykin,
had failed to appear. Accordingly, the court issued a body
attachment for the juror and instructed the sheriff to attempt to
locate the missing juror. At the request of the defense, and
without objection by the State, the remaining 11 jurors were
3
sequestered in the jury room and instructed to refrain from
deliberating until all jurors were preseat.
although Juror No. 2's whereabouts remained unknown, it had
been learned that he had a drinking problem and therefore,
police assistance in locating the juror was requested. The court
then inquired as to how the parties wished to proceed in light of
the events. Defense counsel expressed a desire to avoid a
mistrial but stated that it was concerned with placing Juror No.
2 back on the jury panel in the event he was located. It was the
defense's position that the remaining jurors be sequestered and
deliberations continue with 11 jurors. The court also expressed
a desire to avoid a mistrial at this stage, and noted the large
amount of time, money and expense which had gone into the
trial. Accordingly, the remaining jurors were sequestered for
lunch.
Later, the court resumed and again inquired as to the
manner in which to proceed. The State requested that the
remaining jurors be sent home for the weekend in order to give
the court time to learn the whereabouts of Juror No. 2. The
State explained:
MR. DOORY [THE STATE]: . . . . I want to
know why the man is not here. If he is not here
for a reason not associated with this case,
because of his personal life, proceeding with
eleven would be acceptable.
If we were to find out later on that he is
not here for a reason associated with this case,
or some participant in the case, or something
along those lines, then I would think that a
mistrial is a more appropriate remedy in this
situation. To act now, I just wouldn't feel
comfortable with learning information at a later
date.
(Ta. at 21)’. The defense reiterated its desire to proceed with
11 jurors and the court concurred, but decided to refrain from
making the decision until the following Monday morning, as the
State had suggested. Upon inquiry, the remaining jurors
informed the court that they would refrain from outside
influences and therefore, they were released until Monday
morning without sequestration.
Later that afternoon, Juror No. 2 contacted the court
and stated that three unknown “white guys" had assaulted him
while cashing his checks the previous evening. The court
stopped its inquiry and instructed Juror No. 2 not to speak of
the incident with anyone until he arrived by police escort to
court.
Prior to Juror No. 2's arrival in court, the court
expressed concern that Juror No. 2's incident would influence
the verdict and further stated that it believed Juror No. 2 should
not continue on the jury. Both defense counsel and the State
agreed that it may be necessary to discharge the juror. The
court accordingly, issued a gag order and noted the significant
amount of time, money, and effort involved in the trial. Upon
further discussion as to the potential mistrial situation, the court
stated:
THE COURT: I don't believe we have one right
now, Mr. Doory. I have given serious thought
to it. I can assure you we have a situation now
where there is nothing inflammatory that has
1
For purposes of brevity, Petitioner will reference the transcripts of
the Circuit Court of Baltimore City proceeding in State of Maryland v, Gorwell,
Case No. 193118001, as follows:
"Ta." refers to the transcript of proceedings from the morning and
early afternoon of August 6, 1993.
"Tb." refers to the transcript of proceedings from the afternoon of
August 6, 1993.
"Tc." refers to the transcript of proceedings from August 9, 1993.
5
reached these jurors’ ears, where they were
inconvenienced all day, that they have been in a
neutral stance. They have not deliberated. They
have actually been, I think, quite conscientious
thus far, in this Court's view. There is no
mistrial thus far, and so I want to prevent that
circumstance from occurring and we have a
weekend ahead of us.
(Tb. at 11-12). Both the court and counsel decided to refrain
from further discussions until hearing Juror No. 2's own account
of the incident which led to his failure to appear in court.
Upon Juror No. 2's arrival, the trial court resumed its
meeting in chambers with counsel. At this time, the State
informed the court that "based on just the allegation that the
juror has made, it is going to be impossible for us to accept a
jury of less than twelve," and reasoned that "there is just no way
for the public to accept the impression about what is happening
here." (Tb. at 14). Defense counsel advised the court that it
did not share in the State's position. The trial court suggested
waiting on such a decision until Juror No. 2 was questioned.
Juror No. 2 was then presented and upon being sworn
for questioning, stated that after court the previous day, he had
gone home and then proceeded to his work place to pick up his
paycheck and then to his mother’s for an additional check. He
then proceeded to a check cashing store on Eastern Avenue to
cash the checks. Upon returning to his car, Juror No. 2 stated
that "three guys” hit him over the head and "snatched" his
money. Upon further court inquiry as to his disappearance,
Juror No. 2 explained "the bottom line is, I know this is
important, okay, but when I got knocked to the ground and
somebody snatched my wife's money, it wasn't important to me
and I didn't want to go home so --". (Tb. at 18). Upon being
asked by the court, to slowly restate the events, Juror No. 2
stated in conclusion that the incident could have been his fault
because he was counting his money as he was walking to his
6
car. A description of the assailants revealed that they appeared
to be youths and that they had white legs. Further ex, \anation
revealed that Juror No. 2 had purchased "a half of pint" after the
incident, which he sat and drank in his car from 11:30 p.m. on
August 5, 1993 until 2:00 p.m. on August 6, 1993. At the
conclusion of questioning Juror No. 2, the trial court asked
Juror No. 2 whether anything caused him to believe the three
individuals had anything to do with the case at hand. Juror No.
2 responded, " I just wasn't paying attention, you know, coming
out of the store. I was counting my money, okay, trying to
count my money.” (Tb. at 37). The court again asked the juror
to reflect upon the incident and then inquired once more
whether the juror could think of any facts that linked the attack
to the present case. Juror No. 2 responded, "No, I don't know
anyone who is even connected with the case." (Tb. at 38).
The court then conferred with counsel in chambers. At
that time, the State suggested that Juror No. 2 be placed back
on the jury because the State was "not comfortable with going
with the jury without him giving his account of what happened
to him." (Tb. at 39). The State concluded that "with him [Juror
No. 2] off the jury, because he was attacked, or claims to have
been attacked by three white youths, there is just no way we
would consent [to proceed].” (Id.) ewe discussions
resulted:
THE COURT: You could accept him [Juror
No. 2] if he said he could put everything out of
his mind; is that correct?
MR. DOORY [THE STATE]: Yes.
THE COURT: And you could accept him
because, I assume you're saying, because you're
persuaded in your own mind that what happened
to him had nothing to do with any of the
participants of this trial; is that correct?
MR. DOORY [THE STATE]: If he's
persuaded by it, I could be persuaded by it, yes.
7
THE COURT: That's what he said.
MR. DOORY [THE STATE]: Uh-huh.
THE COURT: Yes?
MR. DOORY [THE STATE]: Yes.
THE COURT: Then why is it, if he and you are
persuaded that his robbery had nothing to do
with the case, that you would not be willing to
go forward with eleven jurors?
MR. DOORY [THE STATE]: Because, Your
Honor, if, in fact, this jury were to come back
with a not guilty verdict, I don't see how it
would be acceptable to the public or people of
the State that criminal action by some people,
who the public could view as interested in this
case, would change the balance of the case.
THE COURT: But if the jury came back with
a guilty verdict and he was sitting on the jury,
how would it look to the public, to follow your
thinking, that the Court allowed someone to go
on the jury who claimed he had been attacked
by someone?
MR. DOORY [THE STATE]: I understand
those are the two sides of it, . . .
(Tb. at 40-41). Defense counsel stated that it was opposed to
reseating Juror No. 2 due to a potential bias and the inability to
determine the truthfulness of the story. However, the defense
agreed to consent to proceed with 11 jurors. The State
continued to oppose proceeding, and the court responded as i
follows:
THE COURT: . . . you are putting your office in
a position where a juror who says he was :
robbed, and it has nothing to do with the case,
and merely because the alleged robbers are
white, you refuse to go forward with eleven
jurors, although you had said earlier in the day
that if, in fact, it turned out that whatever
happened had nothing to do with the case, that
you would be willing to go with eleven jurors,
and I say that because, as you yourself or as one
of the attorneys said during closing arguments,
justice is supposed to be blind.
Everybody here is quite sensitive to the
issue of race if that is an issue to go into this
case. Merely because three teenagers who
happen to rob a black person are white, I don't
believe should be sufficient for the State's
Attorney to believe that somehow the public can
have an inference that that had a connection
with white people nebulously involved in the
case. I do believe it insults the intelligence,
integrity, and concern and justice of the general
community. I truly believe that.
(Tb. at 43 - 44). The State responded by suggesting that the
incident had tampered with the remaining jury panel. The trial
court adamantly disagreed with the State and noted the efforts
taken by all parties to preserve the remaining jurors who had no
knowledge of any of the events pertaining to Juror No. 2.
Further discussions over the racial element of the incident led
the court to conclude as follows:
THE COURT: ... There is nothing in this case
and nothing in what he [Juror No. 2] says that
even a little bit, if it was even a little bit, a
scintilla, I wouldn't be talking this strong,
because I want the system to be perceived as
working so much, and so far I think you've both
went out of your way so that both sides and all
factions and all constituents to this case were
served. . .
If there was, again, tell your superiors, a
scintilla of anything other than the fact that the
legs of the teenagers were white, I would say
let's look into it and we can't go forward. It
might have something to do with it, but that's
(Tb. at 46).
Discussions then focused on possible sequestration of
Juror No. 2, during which the State again suggested reseating
Juror No. 2. The court reiterated its concerns and indicated
that it could not reseat the juror. The court decided to order
Juror No. 2 to return home for the weekend, not discuss the
case with anyone, and then report to court the following
Monday morning.
Proceedings were resumed on Monday morning, August
9, 1993. In open court, but outside the presence of the jury,
the court summarized the events which transpired on Friday,
August 6, 1993. Juror No. 2 was then called to testify as to the
circumstances leading to his failure to appear in court the
previous Friday. Again Juror No. 2 was asked if he believed
there to be a connection between the assault on him and Officer
Gorwell's trial. Juror No. 2 again replied that there was no
connection and that he "was like a fool waving his money/[.}"
(Tc. at 14). After excusing Juror No. 2, the court addressed
whether or not to discharge Juror No. 2 from the jury. Defense
counsel opposed reseating Juror No. 2 and the State left the
decision to the discretion of the court. The court declared that
it did not believe Juror No. 2 to be capable of rendering a fair
and impartial verdict and expressed concern that Juror No. 2
discharged Juror No. 2 from the jury.
The court then again explored whether or not to
proceed with the remaining 11 jurors. The court noted the
following:
THE COURT: .. . There are eleven jurors
remaining. They are a representative group of
the community in both their racial component or
10
their gender component. These individuals
have, throughout this trial, listened diligently,
have been attentive, and always have been on
time.
Moreover, a great deal of time, effort,
and money, resources have gone into this trial.
Until Friday morning, this Court believes the
case went forward with both counsel providing
a diligent representation of their respective
interests in order to insure the integrity and
fairness of the trial process.
This Court does not believe that one
errant juror who made a deliberate choice not to
come in or call should so disrupt the process
that the entire trial should not be permitted to
go forward. The Court believes it is important
for all concerns, the State and the defendant,
that these proceedings conclude, that there be a
finality sooner than later, in what has occurred.
Thus, I'm going to ask both counsel to
indicate to me whether they wish to go forward
with eleven jurors. . .
(Tc. at 22). The Defense agreed to proceed with 11 jurors
subject to two voir dire questions being asked. Prior to
inquiring of the State as to its answer, the Court stated:
THE COURT... . . before I hear [the answer of
the State], I want to impress upon the State the
Court's belief, in view of the fact that the
defendant is willing to go forward, subject to
that voir dire process, that this trial proceed.
Witnesses were brought in from out of town.
People came in and testified, and, as I have
mentioned, time, effort, and a great deal of
resources were spent on this trial.
There are eleven people left. They are
black and white. They are male and female.
They must come forth with a unanimous verdict.
It's not a majority rule verdict in this country.
The Court strongly believes and has confidence
that the eleven jurors that remain can deliberate,
and hopefully, come to a unanimous verdict one
way or the other.
Therefore, what I am going to do, I
would like to recess for fifteen minutes, and I'd
like to give you an opportunity to reflect and to
talk with others in your office and come back in
fifteen minutes with a response as to whether
the State is willing to go forward, because this
Court strongly believes if the defendant is
willing to go forward, this case should conclude.
(Tc. at 23 - 24). The court recessed and upon resuming the
State informed the court as follows:
MR. DOORY [THE STATE].. . . I must tell the
court that, among other things, we are very
concerned about the lapse of time here, and the
record should reflect that the evidence
approximately noon time on Thursday, and after
four hours, or four and a half hours of actual
debate, was stopped Friday, and has spent three
days to ponder not the evidence, but to ponder
the process and the missing juror. We are
concerned that the integrity of the process has
been so affected that the perception of justice
and the public acceptance of a verdict in this
case, which was going to be difficult at best
anyway for the general public to accept any
verdict here, but given the fact that one of the
12
jurors had to be removed, the State is unable to
give its consent to proceeding with eleven
jurors.
(Tc. at 24 -25).
Defense counsel suggested proceeding to verdict by way
of a court trial. However, the trial court declined to become the
fact finder because it felt at such a late stage in the proceedings,
inferences easily may be drawn that the court's decision was
biased by exposure to collateral matters which the court would
not have allowed itself exposure to if it had initially been chosen
as the trier of fact. The State advised that the matter was within
the court's discretion and the State had no right to make such a
decision. However, the State added that it had confidence in
the court's ability, a confidence it did not have in a jury of less
than 12. The court concluded that it should not be the trier of
fact because there "is, especially in this case, a need for a
perception of justice and for the process to work[,]" and at such
a late stage it would be unfair to the interests of all for the court
to become trier of fact. (Tc. at 28). In conclusion the court
stated:
THE COURT: This Court is dismayed and
perplexed that the State would say it had
confidence in the Court, one individual, to
render a verdict, but that the State lacks the
confidence of eleven people, representative in
their racial makeup and in their gender makeup.
Eleven people who gave up two weeks of their
personal time and who each day came in on
time, listened attentively, took notes, asked
questions, deliberated in s;:od faith, and who
would have to, with whatever verdict, give an
unanimous verdict, and I emphasize that, this is
not a majority rule situation, but a situation
where there would have had to have been a
13
The Court, as I began to say, is
dismayed with the State's conclusion that the
integrity of the trial has so been affected that the
public wouldn't accept the verdict. This Court
has more confidence in the public. The result of
that decision, of course, leaves the Court's hands
tied. I have now no option.
It was so important to the State, to the
family of the victim in this case, to the
defendant, to the community, that there would
be a finality of these proceedings, that they
would conclude, and the Court, as I stated
before recess, thought they could conclude in a
way that showed the process to work.
We have permitted today, as I said
before, one juror, one individual who showed a
complete disregard for the significance of his
role, to totally disrupt the process and to waste
time, money, and effort, but other than
expressing as strongly as the Court can, its
disappointment with the State's decision not to
agree to go forward with these eleven people of
the community so that they could render a
unanimous verdict, the Court has no choice but
to declare a mistrial, which is now declared. It
is a waste and it was unnecessary.
(Tc. at 29 - 30). The 11 remaining jurors were called to the
courtroom, informed of the mistrial situation, and released.
Proceedings were accordingly concluded.
Retrial was scheduled for November 29, 1993. Officer
Gorwell filed a motion to dismiss on the grounds of double
jeopardy and on November 16, 1993, a hearing was conducted
on the matter. After arguments, the court held the matter sub
curia, and issued a written memorandum and order on
November 19, 1993 which granted Officer Gorwell's motion to
14
dismiss on the grounds of double jeopardy.
The State noted an appeal of the dismissal in the Court
of Special Appeals of Maryland, Case No. 1737, September
Term 1993. Prior to review of the appeal, however, the Court
of Appeals of Maryland issued a writ of certiorari sua sponte to
the Court of Special Appeals of Maryland.
By its decision dated July 19, 1995, the Court of
Appeals of Maryland reversed the decision of the Circuit Court
for Baltimore City and remanded the case for retrial. The Court
of Appeals held that no Constitutional requirement exists which
requires either party to explain or justify its insistence upon 12
jurors when invoking Maryland Rule 4-311(b), which requires
a jury to consist of 12 persons unless both parties agree to a
lesser number. By order of the Circuit Court of Baltimore City
dated August 21, 1995, retrial is stayed in this matter pending
final disposition in the Supreme Court of the United States.
REASONS FOR GRANTING THE WRIT
THE FIFTH AMENDMENT PROTECTION AGAINST
DOUBLE JEOPARDY IS VIOLATED WHEN RETRIAL
IS PERMITTED AFTER THE STATE CAUSES A
MISTRIAL BY REFUSING TO CONSENT TO A JURY
OF LESS THAN TWELVE UNDER MARYLAND RULE
4-311(B) WITHOUT SATISFYING ITS
CONSTITUTIONAL REQUIREMENT OF
DEMONSTRATING A MANIFEST NECESSITY FOR
CAUSING THE MISTRIAL.
The issue of whether Maryland Rule 4-311(b) may be
relied upon to grant a mistrial without deference to
constitutional constraints imposed on retrial after a mistrial, is
significant not only to the petitioner, but also to the future
development of the common law as it relates to the
interpretation of rules in accordance with the Constitution.
Specifically, the decision of the Court of Appeals of Maryland
15
in State of Maryland v. Gorwell, has created a loophole by
which any party can use Maryland Rule 4-311(b), which
requires both parties to stipulate to a jury of less than twelve, to
force a mistrial without meeting the requisite burden of
establishing a manifest necessity for the mistrial. This
constitutional burden imposed upon the State when it causes a
mistrial is mandated by decisions of this Court. However, the
effect of the Court of Appeals’ interpretation of Maryland Rule
4-311(b) contradicts both the decisions of this Court and the
Constitutional guarantees afforded to defendants. Accordingly,
if this decision is permitted to stand, the Court of Appeals has
opened the door for Maryland to ignore constitutional restraints
in the application of state rules. Accordingly, the Court of
Appeals has rendered Maryland Rule 4-311(b) unconstitutional
in its interpretation and permitted a violation of the double
jeopardy safeguards guaranteed to the petitioner by permitting
retrial after a mistrial without requiring the State to demonstrate
a manifest necessity for the mistrial.
Furthermore, the overall ramifications of the Court of
Appeals’ decision are widespread in that this decision permits a
literal per se application of any state rule without deference to
the constitutional constraints ordinarily imposed when invoking
such rules. The per se application of the rule is of particular
significance because the constitutional requirements afforded all
defendants are being bypassed by a state court in its
interpretation of a rule. Unlike federal courts of appeal which
pay great deference to the decisions of other federal circuits,
state courts act very independently of other state courts.
Therefore, the potential for a variety of differing constitutional
interpretations of identical state court rules throughout different
States is significant. Accordingly, it is essential that a consistent
precedent be established among the states which establishes the
constitutional framework of such state rule interpretation. The
issue presented in this case has been addressed by varying state
courts and the decision of the Court of Appeals has created
16
additional conflicting law among the states. Thus, in light of the
uniqueness of this issue at bar, the conflict which has already
this Court acts to address the issue.
A. The Court of Appeals rendered Maryland
Rule 4-311(b) unconstitutional in holding
that no requirement exists which mandates
that the State justify its decision to insist
upon 12 jurors and cause a mistrial, _
The Court of Appeals of Maryland held that Maryland
Rule 4-311(b), which requires a jury of 12 persons unless both
parties agree otherwise, is "clear, unequivocal, and mandatory"
and “means just what it says" in that it "does not require that
either party explain or justify a decision to insist upon the
number of jurors provided by law". (App. at 11-12).
Furthermore, the Court of Appeals refused to even "imply such
a requirement." (App. at 12). This holding, however,
completely disregards the constitutional mandates issued by this
Court when a mistrial results after the State invokes Maryland
Rule 4-311(b) by refusing to consent to proceed with less than
12 jurors. Accordingly, the decision of the Court of Appeals
renders Maryland Rule 4-311(b) unconstitutional when utilized
by any party in this manner.
The basis of the mistrial in this case was, as the Court of
Appeals stated, “when the 12th juror was discharged and the
State declined to agree to proceed with fewer than the number
of jurors guaranteed by the applicable Maryland Rule." (App.
at 16). It is, therefore, apparent from both the Court of
Appeals’ decision and the facts of this case, that the State's
refusal to stipulate to less than 12 jurors was the direct and
immediate cause of the mistrial, as opposed to the juror’s
disappearance and subsequent discharge. However, the Court
of Appeals’ holding which disregards the significance of this
17
basis for the mistrial and simply sets forth a literal reading of the
rule, renders such an application of the rule unconstitutional.
The constitutional requirements which the Court of
Appec's has failed to adhere to are deeply embedded in
decisions from this Court. It is undisputed that the Fifth
Amendment of the Constitution guarantees that a person shall
not be placed in jeopardy twice. U.S. Const. amend V. This
double jeopardy protection applies to the states by virtue of the
Fourteenth Amendment. United States v. Dinitz, 424 U.S. 600,
606 n.8 (1976) (citing Benton v. Maryland 395 U.S. 784
(1969)); See U.S. Const. amend XIV. Furthermore, the
declaration of a mistrial implicates a defendant's "valued right
to have his trial completed by a particular tribunal." Dinitz, 424
U.S. at 606 (quoting Wade v. Hunter, 336 U.S. 684, 689
(1949)). This constitutional protection and valued right is
founded upon the principal that the
State with all its resources and power should
not be allowed to make repeated attempts to
convict an individual for an alleged offense,
thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in
a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even
though innocent he may be found guilty.
Dinitz, 424 U.S. at 606 (quoting Green v. United States, 355
U.S. 184, 187-188 (1957)). Accordingly, the judicial system
has long adhered to the policy that if a trial is aborted as a result
of certain actions of the court or prosecutor without the
defendant's consent, thereby depriving him of his right to a
verdict, then the prohibition against double jeopardy would
preclude a subsequent trial in the absence of "manifest
necessity". Arizona v. Washington, 434 U.S. 497, 503-506 -
(1978); See Inre Mark R., 449 A.2d 393, 396 (Md. 1982);
Ward v. State, 427 A.2d 1008, 1013-1014 (Md. 1981).
18
In Arizona, this Court recognized that the significance
of a defendant's constitutional protection against double
Jeopardy requires the State to bear the burden of demonstrating
the requisite "manifest necessity" for a mistrial which results
without the consent of a defendant. Arizona, 434 U.S. at 505.
As this Court stated:
. .. in view of the importance of the right [of the
accused to have trial completed], and the fact
that it is frustrated by any mistrial, the
prosecutor must demonstrate "manifest
necessity" for any mistrial declared over the
objection of the defendant.
The words "manifest necessity"
appropriately characterize the magnitude of the
prosecutor's burden.
Arizona, 434 U.S. at 505 (quoted by In re Mark R., 449 A.2d
at 397). (Emphasis added).
In addition, this Court has further explained that when
a prosecutor seeks a mistrial for tactical reasons or for an
opportunity to strengthen weaknesses in its evidence and a
mistrial is declared "so as to afford the prosecution a more
favorable opportunity to convict...", manifest necessity does
not exist and retrial is barred. Arizona, 434 US. at 508;
Downum v. United States, 372 U.S. 734, 736 (1963). As this
Court stated in Arizona:
. [S]trictest scrutiny is appropriate when the
basis for the mistrial is the unavailability of
omen puawcnten evidence, or when there is
== Ji US ce ah
tical Ge US. at 508 (Emphasis itied).
19
In contrast to the law as established in Arizona,
however, the decision of the Court of Appeals has permitted the
State to side-step its constitutional obligations by relying on the
literal words of Maryland Rule 4-311(b). Quite simply, the
Court of Appeals has permitted the State to force the trial court
and defendant into a mistrial without shouldering the requisite
burden of establishing a manifest necessity for doing so. Such
a holding directly violates the constitutional rights of the
petitioner, particularly at such a late stage of the trial.
In support of its decision, the Court of Appeals
inappropriately analogizes this case to one in which the
defendant has attempted to insist upon the right to waive a jury
trial, as was the situation in Singer v. United States, 380 U.S.
24 (1965). (App. at 12). However, in sharp contrast to the
analogized scenario of Singer, this case presents a situation in
which the State's insistence upon its right to 12 jurors under
Maryland Rule 4-3 11(b) directly results in a mistrial without the
consent or request of the defendant. No such mistrial situation
was presented in Singer. To the contrary, in a situation such as
the one at bar, the resulting mistrial has potential double
jeopardy ramifications under the 5th Amendment to the United
States Constitution. Therefore, the State has the additional
burden of justifying the mistrial which resulted from its decision
not to acquiesce to less than 12 jurors in accordance with
mandates already embedded in the law by decisions of this
Court. Accordingly, the Court of Appeals reliance on Singer is
unfounded.
The decision of the Court of Appeals grants the State an
unconditional and unconstrained right to refuse a jury of less
than 12 members by means of the application of Maryland Rule
4-311(b). However, as this Court has established, the 12
person jury is not a constitutional requirement, but instead a
"historical accident, unnecessary to effect the purpose of the
jury system and wholly without significance ‘except to
mystics.” Williams v. Florida, 399 U.S. 78, 86 (1970) (cited by
20
Maryland v. Kenney, 609 A.2d 337, 339 (Md. 1992)). Thus,
the Court of Appeals can not interpret a "historical accident" to
be an unconditional right and therefore permit the State to
utilize Maryland Rule 4-311(b) in a manner which deprives an
accused of his or her double jeopardy protections under the
Fifth Amendment. Such a decision directly contradicts the
Supremacy Clause of the Constitution. See U.S. Const. art. VI.
Under the Supremacy Clause, the Court of Appeals can not be
permitted to allow the State to rely solely upon Maryland Rule
4-311(b) to justify its actions and ignore its constitutional
burden of demonstrating a “manifest necessity" in order to
reprosecute the petitioner. In so holding and therefore allowing
the State to hide behind Maryland Rule 4-311(b) without
meeting its constitutional requirement of demonstrating a
"manifest necessity" for the mistrial, the Court of Appeals has
rendered Maryland Rule 4-31 1(b) unconstitutional.
The mandates of the Supremacy Clause and the
constitutional requirements of the Double Jeopardy Clause must
be harmonized with the words and implementation of the
Maryland Rules, particularly in light of the ever increasing
length of trials. Otherwise, Rule 4-311(b) violates both the
Double Jeopardy Clause and a defendant's right to complete his
trial in a particular tribunal. The Court of Appeals’ holding
creates a loophole for the State by which it could seek to
reprosecute an individual while avoiding its heavy burden of
demonstrating a manifest necessity for causing a mistrial.
B. In assuming arguendo that the State was
required to demonstrate a manifest necessity
for the mistrial, the Court of Appeals erred
Without altering its decision to interpret Maryland Rule
4-311(b) as an absolute right to require 12 jurors without an
explanation, the Court of Appeals addresses the issue of
whether circumstances may exist which require a showing of
21
manifest necessity by the State in causing a mistrial. Although
the Court of Appeals’ discussion is merely dicta, its rationale
demonstrates its misguidance in applying the law and
accordingly, rendering its opinion.
1, The Court of Appeals erred in
refusing to find a compelling situation
of prosecutorial misconduct which
warranted the constitutional double
jeopardy protection.
First, the Court of Appeals notes that in Oregon v.
Kennedy, 456 U.S. 667, this Court recognized that some
compelling circumstances exist in which the government's
refusal to stipulate to the waiver of a jury trial is motivated by
misconduct such that it denies the defendant a right to an
impartial trial. (App. at 13). However, despite this recognition,
the Court of Appeals erroneously concludes that if the State
were to justify its decision to cause a mistrial in this particular
case, the justification would have satisfied the requisite
"manifest necessity". To support this opinion, the Court of
Appeals concludes that the trial court's finding of facts were
clearly erroneous. (App. at 14). In particular, the Court of
Appeals finds the State's refusal to accept a jury of less than 12
to be a “bit of a stretch" from being the legal equivalent to
prosecutorial misconduct which demonstrates a specific intent
to cause a mistrial. (App. at 13). However, the facts of this
case clearly demonstrate the error in such a conclusion and
emphasize further the unconstitutionality of the decision.
The trial court concluded as a matter of factual finding
that prosecutorial manipulation existed and "the State's refusal
to go forward with less than a broad-based jury of 12
individuals at the conclusion of a long and expensive trial
manifested a deliberate intent on its part to afford itself a more
favorable opportunity to convict." (App. at 33). As the facts
of this case reflect, the State had initially consented to proceed
22
RE Te TRE Ee
with 11 jurors if Juror No. 2's disappearance was determined to
be unrelated to reasons having to do with the trial. However,
as time passed and the prosecutor had an opportunity to confer
with the State's Attorney, the State seized the opportunity for
a mistrial. The State declared the possibility of a mistrial prior
to learning the exact reasons for Juror No. 2's absence, and
again after Juror No. 2 called and informed the court that he
had been assaulted by white individuals. In fact, at that time,
the State was already prepared to reject the jury panel of 11 and
only refrained from doing so at the court's insistence. After
Juror No. 2 had been questioned by the trial court, the State
reiterated its belief that a mistrial was apparent, despite Juror
No. 2's confirmation that the attack was unrelated to this case.
Furthermore, the State's enthusiastic efforts to reseat Juror No.
2 are indicative of attempted manipulation of the court.
Accordingly, the trial court's factual findings are supported by
the record and are therefore, not clearly erroneous.
Furthermore, regardless of the fact that such misconduct
is supported by the record, a finding of bad faith conduct by the
prosecutor is not always a requirement for barring retrial
according to the decisions of this Court. Retrial has been
prohibited under the Fifth Amendment even when actual bad
faith conduct is absent. See Downum, 372 U.S. at 736 (Retrial
barred without specific findings of bad faith by prosecutor
because discharge of jury before verdict should be exercised
"only in very extraordinary and striking circumstances" and the
alternative of continuing with remaining counts existed.); United
States v. Jorn, 400 U.S. 470 (1971) (defendant protected from
burdens of retrial because "independent of the threat of bad faith
conduct by judge or prosecutor, the defendant has a significant
interest in the decision whether or not to take the case from the
jury when circumstances occur which might be thought to
warrant a declaration of a mistrial.") Accordingly, this Court's
recognition of the significance of a defendant's valued right to
be protected from being placed in jeopardy twice, and his right
23
to have his trial completed in a particular tribunal, have been
completely disregarded by the Court of Appeals.
2. The Court of Appeals erroneously
opines that the public's perception of
justice warrants manifest necessity
for a mistrial
The Court of Appeals gives unwarranted credence to the
State's justification for refusing to accept a jury panel of 11 on
the grounds that the public's perception of justice constitutes
manifest necessity. (App. at 14-15). In particular, the Court
of Appeals finds merit in the State's reliance on the public's
perception of justice in what it deemed a high profile and
racially sensitive case. (App. at 14). However, the Court of
Appeals has erroneously disregarded the trial court's finding of
fact that there was no basis for the State's concern with the
public's acceptance of the verdict and focused on the racial
element of the attack of Juror No. 2. As the trial court noted:
COURT: If there was, again, tell your
superiors, a scintilla of anything other than the
fact that the legs of the teenagers were white, I
would say let's look into it and we can't go
forward. It might have something to do with it,
but that's not what has happened.
(Tb. at 46).
What the Court of Appeals has failed to recognize is that
the Constitution does not protect "appearances" in a criminal
trial, but rather the defendant's valued right to have his trial
completed by a particular tribunal and not be subjected to
repeated prosecution in contravention of the Constitution of the
United States. The Court of Appeals’ concern with the public's
perception completely disregards the defendant's right to a fair
and impartial jury. In effect, the decision of the Court of
Appeals has place this valued right of a defendant subordinate
to the public's perception and has given undue weight to the
24
i iaaatiiaaalincaiiaiiiiia)
public's interest in pursing a fair trial designed to end in a just
judgment. See Illinois v. Somerville, 410 U.S. 458 (1973). The
finding of the Court of Appeals completely disregards the
Constitutional protections afforded the petitioner, particularly
in light of the time expense and effort already expended in this
lengthy trial.
Furthermore, the Court of Appeals failed to
acknowledge that a verdict from an 11 member jury is both
permissible under Maryland Rule 4-311(b) and acceptable
according to the common law. The justice system of the United
States does not depend upon the acceptance or rejection of
verdicts by the public. Justice occurs inside the four corners of
a courtroom as a result of a select cross-section of the
community deliberating as jurors. Any court decision or
verdict is both supported and rejected by different sectors of the
community, which is precisely the reason a jury composed of a
cross-section of the community is accepted as the appropriate
forum for the pursuit of justice. The Court of Appeals has
unconstitutionally centered its concerns on the public's
acceptance of a verdict, rather than concentrating on the
impartiality of the jurors and their ability to render a just verdict.
Therefore, permitting the State to manipulate the outcome of
the trial under the guise of Maryland Rule 4-311(b) in order to
appease a portion of the public hardly constitutes a "manifest
necessity" for a mistrial and as a result, the decision is
unconstitutional.
3. The Court of Appeals erred in
declaring the remaining jury panel of
11 a new tribunal. _
The Court of Appeals makes the unfounded assertion
that regardless of all other law, the remaining jury of 11 was not
the same "tribunal" as the jury of 12 and therefore, the
defendant had no valued right to have the verdict rendered by
the remaining 11 jurors. (App. at 15). This assertion is
25
unsupported and an impermissible last effort at avoiding the fact
that the petitioner had a constitutional right to proceed to
verdict which if deprived from him for whatever reason, could
only be done constitutionally upon a showing of manifest
necessity.
4. The Court of Appeals erroneously
gives credence to the unfounded
assertion that the remaining jury
panel was tainted simply by the loss
of one juror.
The Court of Appeals gave deference to the State's
concern that the remaining jurors had the opportunity to
speculate and ponder as to the circumstances of the missing
juror. (App. at 14). Therefore, the Court justified the State's
action of forcing the court into a mistrial by refusing to permit
the remaining jurors to proceed to verdict. Such a conclusion
is unsubstantiated by the facts of this case. The facts clearly
reflect the extensive precautionary measures taken by the trial
court to ensure that the impartiality of the jury panel remained
intact despite the incident surrounding Juror No. 2's dismissal.
Throughout the entire episode involving Juror No. 2's failure to
appear in court, the jury was isolated from information of the
incident in the sanctuary of the jury room. Although the jurors
were not sequestered upon their release from court for the
weekend, as defense counsel requested, the jurors remained
untouched by the events through their commitment to avoid
outside influences. In addition, after the jury was released from
court for the weekend and Juror No. 2 was subsequently
located, the court issued a gag order to prevent information
from reaching the remaining jurors. It was the trial court's own
position that an impartial verdict could be rendered by the
remaining eleven jurors. For this reason, the trial court urged
the State to reconsider its position. When reviewing possible
juror bias, there are compelling institutional considerations
26
which favor giving deference to a trial judge's evaluation of that
bias. Arizona, 434 U.S. at 513-514. The Court of Appeals
failed to appropriately grant the proper deference to the trial
court's determination that the remaining jury panel was not
biased in any way from the circumstances surrounding Juror
No. 2's dismissal and that it could render a fair verdict had
deliberations been permitted to proceed.
od The Court of Appeals' decision is
inconsistent with similar constitutional
interpretation of peremptory challenge rules.
The decision of the Court of Appeals is diametrically
opposed to similar rule interpretation issues which have already
been addressed by this Court. In particular, the use of
peremptory challenges to strike jurors for any reason has been
constrained by Constitutional requirements. The language of
the rules permitting peremptory challenges, like Maryland Rule
4-311(b), does not require parties to explain the reason the
challenge is being used. However, this Court has declared that
when a peremptory challenge is sought to be used under the
applicable rule, the Constitution requires that a party justify that
the challenge is not used on the basis of race or gender. See
Georgia _v. McCollum, 502 U.S. 42 (1992); Batson v.
Kentucky, 476 U.S. 79 (1986); Tyler v. Maryland, 623 A.2d
648 (Md. 1993); Maryland v. Gorman, 596 A.2d 629 (Md.
1991); Gilchrist v. Maryland, 627 A.2d 44 (Md. App.), cert.
granted, 633 A.2d 102 (Md. 1993).
Similarly, the Court of Appeals can not be permitted to
allow a per se application of Maryland Rule 4-311(b) without
requiring justification for invoking the rule and causing a
mistrial. Contrary to the permissible use of peremptory
challenge rules, the Court of Appeals has permitted Maryland
Rule 4-311(b) to be utilized without paying deference to
Constitutional constraints when a mistrial results from the
application of the rule. In the event that a rule, such as
27
Maryland Rule 4-311(b), is invoked in such a manner as to
cause a mistrial, the party invoking the rule must be required to
justify its decision to invoke the rule in order to establish that
the resulting mistrial is based upon a "manifest necessity" so that
retrial is constitutionally permitted. The Court of Appeals has
erred in holding otherwise.
D. The holding of the Court of Appeals creates
conflicting law among states.
The Court of Appeals concludes its decision by asserting
that it has interpreted Maryland Rule 4-311(b) consistently with
the decisions of other states. (App. at 16). However, contrary
to this assertion, the few state courts which have addressed this
of Appeals aligns its decision with that of the decisions in New
Jersey v. Romeo, 203 A.2d 23 (N.J. 1964), cert. denied, 379
U.S. 970; Bishop v. Georgia, 347 S.E.2d 350 (Ga. 1986); and
Oregon v. McFerron, 628 P.2d 440 (Or. 1981), a contrary
ruling exists in Hutchens v. District Court of Pottawatomie, 423
P.2d 474 (Okla. Crim. App. 1967).
In Hutchens, a juror was discharged after the court
learned that the juror was the mother-in-law of a rebuttal
witness. Id. As in the instant case, the defendant in Hutchens
agreed to proceed with 11 jurors, but the state refused, and a
mistrial was declared as a result. Id- Upon appellate review,
the Court of Criminal Appeals of Oklahoma found no “cogent
or compelling reason" for the state's refusal to stipulate to a jury
of 11. Id. at 478. To the contrary, the court found the state's
decision to have “the appearance of being an arbitrary or
adamant position, not based upon any necessity whatsoever."
Id. The Hutchens court recognized that: -
Once the jury has been selected and
sworn to try any criminal case, the jury should
not be discharged prior to returning a verdict,
except for a cogent or compelling reason, or for
28
SN ee TT eT ae
a manifest necessity. In situations such as the
one presented by this case, the State
unnecessarily places itself in the position of
confronting a valid plea of former jeopardy. It
is difficult to see how the State could be
jeopardized under these circumstances. Insofar
as a unanimous verdict is required to sustain a
conviction, it would appear that the State's
chances of obtaining such unanimous conviction
with an eleven-man jury would be enhanced.
The converse would likewise be true, where the
jury should be increased by one juror. Were the
latter situation before us, we would
unhesitatingly sustain the State's position.
Id. Therefore, the court barred retrial. Id. Both the facts in the
case at bar and the law of Maryland mirror that in Hutchens.
However, the decisions of the various state courts in each of
these cases is diametrically opposed. Clearly, consistent
standards are necessary for proper constitutional interpretation
of state rules which address the number of jurors in a criminal
case.
This need for consistent standards is of particular
significance because these decisions are holdings from state
courts as opposed to federal circuit courts. Commonly, federal
circuit courts pay great deference to the decisions of other
federal circuit courts. In contrast, the holdings of state courts
are made much more independently of other state court
decisions. Thus, the need for a precedent decision from this
Court with regard to the issue presented is essential. As this
case demonstrates, all states need the assistance of this Court in
determining the parameters of applying state rules in a manner
consistent with the Constitution.
29
CONCLUSION
In holding that Maryland Rule 4-311(b) may be utilized
to cause a mistrial without a requirement that manifest necessity
for the mistrial be demonstrated, the Court of Appeals of
Maryland has authorized an unconstitutional application of
Maryland Rule 4-311(b). Such a decision deprives a defendant
of his or her constitutional double jeopardy protection when
forced into a mistrial by such a use of state rules. Furthermore,
such a decision authorizes this unconstitutional application of a
state rule by any party. Such a loophole for avoiding the
guarantees of the Constitution must be closed by this Court in
order to protect the rights of citizens.
Furthermore, a consistent standard is necessary to
establish the parameters of state rule interpretation in
accordance with the Constitution. In the absence of such
standardized parameters, the states will continue to develop
inconsistent state law pertaining to the constitutional
interpretation of identical state rules. As the law stands, the
constitutionality of such a literal interpretation of state rules
remains an unresolved conflict among the states. A grant of
issue of the application of constitutional constraints in the
interpretation of state rules.
Respectfully submitted
Henry Lee Belsky*
Kimberly A. Kelly
Schlachman, Belsky & Weiner, P.A.
207 East Redwood Street
Ninth Floor
Baltimore, Maryland 21202
(410) 685-2022
Counsel for the Petitioners
* Counsel of Record
30
IN THE COURT OF APPEALS OF MARYLAND
No. 21
September Term, 1994
STATE OF MARYLAND
v.
EDWARD T. GORWELL
Murphy, C.J.
Eldridge
Radowsky
Chasanow
Bell
Raker
McAuliffe, John F.
(Retired, Specially Assigned),
JJ.
Opinion by McAuliffe, J.
Filed: July 19, 1995
App. |
During deliberation of the jury in this criminal case, the
trial judge dismissed one of the jurors at the insistence of the
defendant and then declared a mistrial when the State refused to
proceed with eleven jurors. Thereafter, the defendant filed a
motion to dismiss, contending that the trial should have
continued with eleven jurors notwithstanding the objection of
the State; that as a result there was no manifest necessity for the
granting of a mistrial; and that double jeopardy principles
protected the defendant from retrial. The trial judge granted the
defendant's motion. The State appealed, and we granted
certiorari prior to consideration of the case by the Court of
Special Appeals. We now reverse, finding there was a manifest
necessity for the declaration of a mistrial.
I
The defendant, Edward T. Gorwell, is a Baltimore City
police officer. Just prior to 1:00 a.m. on 17 April 1993 he was
following a stolen Chrysler automobile on Ellicott Driveway
near Gwynns Falls Park. The Chrysler abruptly stopped, and
four young men ran from it into the park. The defendant left his
police vehicle and followed on foot. Shortly after the chase
began, the defendant fired one shot from his 9 mm. pistol. That
bullet struck and killed fourteen-year-old Simmont Thomas,
one of the young men fleeing from the Chrysler.
After an investigation, Officer Gorwell was charged with
the common-law offense of manslaughter. The State contended
that the defendant had no justifiable reason to fire his weapon
at or in the direction of the decedent. The defendant contended
he had heard a shot from the area where he saw two men
running, and that he acted in the defense of his person when he
fired a shot at the person he believed was shooting at him. A
police search of the area failed to produce any weapons, or any
App.2
bullets or cartridges possibly connected with the incident’
except the single cartridge ejected from Officer Gorwell's
weapon. The officer's shot struck the decedent in the back, just
below the right shoulder blade. The decedent's hands were
wrapped in plastic bags at the scene, and a subsequent test was
negative for the presence of gunpowder residue.
The case received a substantial amount of media
attention in Baltimore City, and had racial overtones -- the
officer was white and the young victim was African American.
In a motion for change of venue the defendant alleged that the
city's Mayor and State's Attorney had commented that
shootings by police in the city were "excessive in number" and
that there was "overwhelming citizen polarization for and
against the police."
Trial by jury commenced on 27 July 1993, in the Circuit
Court for Baltimore City. Presentation of evidence was
concluded on Tuesday, August 3, but, because the trial judge
had other trial commitments, instructions and closing arguments
were deferred until Thursday, August 5. The case was given to
the jury at noon on that day. The jury deliberated for about five
and one-half hours before being excused for the day and
instructed to return the next morning.
On the morning of Friday, August 6, one juror did not
appear at the appointed time. The remaining jurors were
instructed not to discuss the case, and a search was undertaken
for the missing juror.
About noon, information was received from the sheriff's
‘A large calibre bullet was found near the left-front
wheel of the Chrysler automobile, but it was "extremely worn
and weathered looking" and apparently could not be
connected to this incident.
App.3
office that deputies had contacted the missing juror's employer.
The employer stated that the juror picked up his paycheck at
7:00 p.m. on the preceding evening and informed his employer
that he was required to return to court the following day. His
employer described the juror as a good employee but one who
had a drinking problem on his own time. Additionally, the
juror’s wife called the court in response to messages that had
been left on her answering machine, and informed the trial judge
that her husband had come home from the courthouse on
Thursday, announced that he was going to pick up his
paycheck, and left. The juror's wife said she had not seen or
The judge sequestered the jury until 2:00 p.m. on Friday,
when she held another conference with the attorneys. At this
point, she announced that the juror had not been found and
asked the attorneys to consider proceeding with eleven jurors.
The State's Attorney asked the court to send the eleven jurors
home after appropriate admonitions, but to defer any decision
on whether to proceed with eleven jurors until the missing juror
could be found, and the reason for his non-appearance
ascertained. The prosecutor suggested that if the juror’s reason
for not being present was entirely personal and not associated
with the case, proceeding with eleven jurors would be
acceptable. If, however, it appeared that the juror was not
present "for a reason associated with this case, or some
participant in this case, or something along those lines," than a
mistrial would be a more appropriate remedy. Defense counsel,
after conferring with the defendant, stated he would agree to
proceed with eleven jurors. The eleven jurors were sent home
at mid-afternoon on Friday, after being told to avoid any media
or other reference to the case.
At 3:30 or 4 o'clock that afternoon the missing juror
telephoned the judge. The judge arranged for him to be brought
App.4
to the courthouse and, while waiting for his arrival, recounted
to the attorneys what the juror had told her: that three "white
guys” had assaulted him when he was cashing his paycheck.
Shortly thereafter, the prosecutor informed the judge that
"based on just the allegation that the juror has made, it is going
to be impossible for us to accept a jury of less that twelve." He
added, however, that the State's view might change after the
parties had heard from the juror. He said:
If the allegation goes away to the point that it
has totally evaporated, possibly we can rethink
our position, but as long as the allegation
remains even in any way viable, there is just no
way for the public to accept the impression
about what is happening here.
When the juror arrived, he was sworn and interrogated
in the presence of the court, counsel, and the defendant. The
juror testified that after he left court on Thursday he went
home. From there he went to his place of employment and
picked up his paycheck, after which he stopped by his mother's
house and obtained an additional check from her. Then he went
to a liquor store on Eastern Avenue where he cashed his checks.
He said as he was walking out, counting his money, three white
teenagers attacked him, knocked him to the ground, and took
his money; that he was initially dazed but then rode around in
his car collecting his thoughts; that he ultimately went to
another liquor store and with a few dollars he had in his clothes
bought a half-pint of liquor, which he consumed; that he sat in
his car for the rest of the night and part of Friday morning
before returning to his home.
After the juror completed his testimony, the parties
again conferred with the trial judge. The prosecutor suggested
that the juror be questioned by the court as to whether the juror
felt he could continue serving as a juror without being affected
App.5
j
by what had happened to him. The prosecutor said that if the
juror was convinced he could continue the State would agree
that deliberations of the twelve jurors should continue. The trial
judge asked the prosecutor why, if the juror was convinced the
attack had nothing to do with the case, the State would object
to proceeding with only eleven jurors. The prosecutor replied:
Because, Your Honor, if, in fact, this
jury were to come back with a not guilty
verdict, I don't see how it would be acceptable
to the public or people of the State that criminal
action by some people, who the public could
view as interested in this case, would change the
balance of the case.
Defense counsel objected to the juror being allowed to
continue. He said he did not believe the juror's story, and he
thought the juror would be biased. He requested that the court
excuse the juror and allow the eleven remaining jurors to
continue. The trial judge, although stating that "everybody here
is quite sensitive to the issue of race if that is an issue to go into
this case," strongly disagreed with the position being taken by
the prosecutor. The Assistant State's Attorney agreed to again
confer with his superiors. The juror was excused until the
following Monday morning.
On Monday morning, the juror was again sworn and
testified in open court but out of the presence of the other
jurors. After the juror again stated his version of the events that
caused him to be absent, the court asked the parties to state
their positions concerning continued service of the juror.
Defense counsel again objected to the juror being allowed to
continue. The prosecutor stated he would submit the decision
to the discretion of the trial judge. The trial judge determined
that the juror had been guilty of serious misconduct and
removed him from further service on the jury.
App.6
lalla!
The trial judge, after voicing a strong opinion that
deliberations should be allowed to continue with the remaining
eleven jurors, again asked the positions of each party. Defense
counsel stated that "subject to two voir dire questions being
asked of the jurors, we are inclined to go ahead with the
eleven."? The prosecutor refused to consent to continuation of
the trial with eleven jurors. He said the State was concerned
that so much time had elapsed since the conclusion of the
evidence, and he was concerned about the public perception of
justice under the circumstances. He said:
I must tell the court that, among other things,
we are very concerned about the lapse of time
here, and the record should reflect that the
evidence concluded last Tuesday at three-thirty.
The jury began its deliberations
approximately noon time on Thursday, and after
four hours, or four and a half hours of actual
debate, was stopped Friday, and has spent three
days to ponder not the evidence, but to ponder
the process and the missing juror. We are
concerned that the integrity of the process has
been so affected that the perception of justice
and the public acceptance of a verdict in this
case, which was going to be difficult at best
anyway for the general public to accept any
verdict here, but given the fact that one of the
jurors had to be removed, the State is unable to
give its consent to proceeding with eleven
The two questions proposed by defense counsel
concerned possible media exposure over the weekend, and
whether the jurors would be affected by the failure of one of
their number to return.
App.7
jurors.
Defense counsel then suggested another option -- that the
defendant be permitted to waive his right to trial by jury and
that the trial judge decide the case. The prosecutor indicated
that this option would be within the discretion of the court, and
the following colloquy ensued:
THE COURT: Is the State telling me
that they have no opposition to the court being
the trier of fact, but they have an opposition to
eleven representative people from _ the
community being the trier of fact?
THE PROSECUTOR: Your Honor, the
State has no right to decide whether or not the
defendant is tried by the court or the jury. We
do have the right to either consent or not
consent to a jury of less than twelve. We are
taking no position about Your Honor accepting
a change of election, primarily because we have
no right to take a position, but to answer the
court's question very succinctly, we have
confidence in the court's ability, in the public's
perception of the court's ability to decide the
case, a confidence that we do not share with a
jury of less than twelve.
The trial judge declined the offer, stating:
[This court believes it should not be the trier of
fact and the trier of law. I believe that because
I do agree with the State that there is, especially
in this case, a need for a perception of justice
and for the process to work. . . .
The trial judge, after expressing her dismay and disappointment
with the State's decision, declared a mistrial.
App.8
Thereafter, the defendant filed a motion to dismiss,
contending that retrial was barred by double jeopardy
protections. At the hearing of that motion, defense counsel
argued that jeopardy had attached at the time trial commenced:
that the defendant was entitled to have that trial completed by
that tribunal; and that "there was no manifest necessity for the
State to not accept eleven jurors." The defense asserted that the
State did not act in good faith in withholding its consent to
proceed with eleven jurors, and that the motivation of
prosecutor was that “the State thought they lost this case and
wanted to get a new trial." The prosecutor adamantly denied
that allegation and said that the State's decision had been made
after consultation with a number of persons, including superiors
in the State's Attorney's Office and the victim's family. The
prosecutor said there were three principal reasons for the State's
decision: 1) concern about the time that had elapsed between
the close of the evidence on Tuesday and the proposed
resumption of deliberations on the following Monday, 2)
concern about impact on the remaining jurors of speculation by
them concerning the non-appearance of one of their number:
and 3) concern “that in a case which caused such controversy
within the community a verdict which sprang from an irregular
process would not be perceived as justice."
The trial judge took the motion under advisement and
thereafter filed a memorandum opinion and order granting the
motion and dismissing the charges. She held that the proper
test to be applied was not whether the State acted in bad faith,
but “whether there was a reasonable alternative to the
declaration of a mistrial." The trial judge found that in this case
there was both "prosecutorial manipulation" and a reasonable
alternative to a mistrial. The determination of prosecutorial
manipulation was based on a finding that "the State's refusal to
go forward with less than a broad-based jury of twelve
App.9
individuals at the conclusion of a long and expensive trial
manifested a deliberate intent on its part to afford itself a more
favorable opportunity to convict." Concerning the existence of
a reasonable alternative to a mistrial, the Court held a "a jury of
less than twelve was a reasonable alternative, and that the State
has not met its burden of proving otherwise."
Il.
Although at one time in the jurisprudential history of this
country it was widely believed that the constitutional right to a
jury trial guaranteed by the Sixth and Fourteenth Amendments
included the right to insist upon a jury of twelve persons, the
Supreme Court has declared that not to be the case. In
Williams vy. Florida, 399 U.S. 78, 86, 90, 90 S. Ct. 1893, 26
L.Ed.2d 446 (1970), the Court opined that the fixing of the
number of jurors at twelve “appears to have been a historical
accident," and that this feature of the jury had not been
immutably codified into the Constitution.’ The Court was
carefull to point out, however, that the States were at liberty to
We do not mean to intimate that legislatures can
never have good reasons for concluding that the
12-man jury is preferable to the smaller jury, or
that such conclusions -- reflected in the
provisions of most States and in our federal
system -- are in any sense unwise. Legislatures
may well have their own views about the
relative value of the larger and smaller juries,
*In a later case, the Court made it clear that, although
there was no magic in the number 12, the constitutional right
to trial by jury guaranteed the right to have at least six jurors.
Ballew v. Georgia, 435 U.S. 223, 244, 98 S.Ct. 1029, 55
L.Ed.2d 234 (1978).
App.10
sia
and may conclude that, wholly apart from the
jury's primary function, it is desirable to spread
the collective esponsibility for the
determination of guilt among the larger group.
In capital cases, for example, it appears that no
State provides for less than 12 jurors -- a fact
that suggests implicit recognition of the value of
the larger body as a means of legitimating
society's decision to impose the death penalty.
Our holding does no more than leave these
considerations to the Congress and the States,
unrestrained by an interpretation of the Sixth
Amendment that would forever dictate the
precise number that can constitute a jury.
Id. at 103.
Maryland Rule 4-311(b) sets forth the law of this State
concerning the size of a jury in a criminal case. That Rule
provides:
A jury shall consist of 12 persons unless
the parties stipulate at any time in writing or on
the record that the jury shall consist of any
number less than 12.
The Rule is clear, unequivocal, and mandatory in fixing the
number of jurors in a criminal case. The sole possible exception
to a jury of 12 involves a stipulation by “the parties," which
quite clearly means the State and the defendant, through their
authorized representatives.‘ See State v. Kenney, 327 Md. 354,
‘Federal Rule of Criminal Procedure 23(b) is similar to
Maryiand Rule 4-311(b) in that it permits the parties, with the
approval of the court, to stipulate to a jury of less than 12. A
1983 amendment to the federal rule addresses the problem that
arose in this case. The federal rule now provides that "Even
App.11
361-65, 609 A.2d 337 (1992).
We hold that Rule 3-41 1(b) means just what it says --
that a jury in a criminal case must consist of 12 persons unless
both parties agree to a lesser number. The Rule does not
require that either party explain or justify a decision to insist
upon the number of jurors provided by law, and we will not
imply such a requirement. The position of the State's Attorney
when asked to stipulate to a jury of less than 12 is analogous to
that of a federal prosecutor who is asked to consent to a
defendant's waiver of a jury trial in a federal prosecution, and
the Supreme Court has interpreted the applicable Federal Rule
of Criminal Procedure to permit the prosecutor to withhold
consent without the necessity of stating any reason.
Because of . . . confidence in the integrity of the
federal prosecutor, Rule 23(a) does not require
that the Government articulate its reasons for
demanding a jury trial at the time it refuses to
consent to a defendant's proffered waiver.
Singer v. United States, 380 U.S. 24, 37, 85 S.Ct. 783, 13
L.Ed.2d 630 (1965).
The defendant attempts to distinguish the rational of
Singer on the ground that Singer involved only the scope of the
right to a jury trial, whereas this case also involves double
jeopardy protections. Additionally, he points out, Singer left
open the possibility that circumstances might be so compelling
in a given case that the prosecutor's insistence on trial by jury
might result in a denial to the defendant of an impartial trial. Id.
absent such stipulation, if the court finds it necessary to excuse
a juror for just cause after the jury has retired to consider its
verdict, in the discretion of the court a valid verdict may be
returned by the remaining 11 jurors." Our Maryland Rule has
no counterpart provision.
App.12
Borrowing from the rationale of Oregon v. Kennedy, 456 U.S.
667, 102 S.Ct.2083, 72 L.Ed.2d 416 (1982), the defendant
argues that when a mistrial is necessitated by bad faith conduct
on the part of the prosecutor retrial is prohibited by the Double
Jeopardy Clause.
Assuming, without deciding, that the intent or motive of
the prosecutor in withholding consent to proceed with a jury of
less than 12 may in some circumstances justify the trial judge in
concluding that the consent of the State is being judged
impermissibly withheld, this is not such a case. In Oregon v.
Kennedy, supra, the Court held that where there was improper
conduct on the part of a prosecutor and that improper conduct
was intended to and did goad the defendant into moving for a
mistrial, retrial was prohibited by the Double Jeopardy Clause.
Id. at 676. It is a bit of a stretch to suggest that a refusal to
consent to proceeding with a jury of less than 12, even when it
is apparent that a mistrial will necessarily result, is the legal
equivalent of actually engaging in prosecutorial misconduct with
the specific intent to cause a mistrial. Even if we assume,
however, that the withholding of consent for the sole purpose
of obtaining a prosecutorial advantage would be improper, and
would justify proceeding with a lesser number of jurors in the
absence of the State's consent, there is simply no evidence that
this was the case here.
The record demonstrates that the State had presented a
case that would support a conviction. There is no suggestion
in the record that a necessary witness had failed to appear or
had recanted, or that the State had somehow failed to produce
evidence needed to support an element of the charged offense.
Quite to the contrary, the prosecuting attorney demonstrated his
willingness to have the case decided on the record as it stood.
He suggested that the jury of 12 be allowed to decide the case,
provided the temporarily absent juror did not assert that his
App.13
ee
ability to decide the issues fairly had been compromised.
Moreover, he interposed no objection to the defendant's
suggestion that the trial judge decide the case. The trial Judge's
finding in this case that there was “prosecutorial manipulation"
because the State's refusal to consent to a jury of less than 12
persons "manifested a deliberate intent on its part to afford itself
a more favorable opportunity to convict" is clearly erroneous.
There is simply no evidence of record that will support that
finding, or upon which inference of that intent on the part of the
State reasonably may be based.
Although the prosecution voiced some concern about
the length of time that had elapsed between the conclusion of
the evidence and the resumption of deliberations, this did not
appear to be the State's principal reason for declining to consent
to continuation of deliberations with 11 jurors. Rather, the
principal reason appeared to involve the public's perception of
justice in a high profile and racially sensitive case and, to a
lesser extent, the possibility of prejudice from speculation of the
11 jurors concerning the absence of their fellow juror and the
long delay.
As noted above, the case was highly publicized in the
Baltimore City area, and it involved a white police office on trial
for the fatal shooting of an African American youth. The
prosecutor manifested a concern that not only should justice be
done but that justice should appear to have been done. We
understand the State's concern to have been that a substantial
segment of the community, including many African Americans,
might well conclude that justice had been subverted if a verdict
of not guilty were returned after the State consented to the
“irregular process" of allowing 11 jurors to decide the case,
particularly when the excused juror was an African American
and his stated reason for failing to appear was he had been
beaten by three “white guys." One might wish that racial
App.14
considerations and pro-police or anti-police considerations
would play no part in the public perception of justice, but that
is not necessarily so. The prosecutor's expressed concern for
conducting this trial in a manner that would not only be fair but
appear to the public to be fair cannot be dismissed out of hand.
Indeed, the trial judge expressed the same concern for the
perception of justice when she declined to accept the
defendant's offer to have her decide the case.
[This court believes it should not be the trier of
fact and the trier of law. I believe that because
I do agree with the State that there is, especially
in this case, a need for a perception of justice
and for the process to work. . . .
The defendant insists that his "valued right to have his
trial completed by a particular tribunal," Wade vy. Hunter, 336
U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949), means that
the defendant has the right to insist that a trial continue when as
many as six jurors have been lost, and that the State is obliged
to consent unless it can offer a cogent or compelling reason why
a jury consisting of fewer than 12 persons would not be fair.
See Hutchens v. District Court of Pottawatomie County, 423
P.2d 474 (Okla. Crim. App. 1967) (State must offer cogent or
compelling reason for declining to proceed with 11 jurors); S.
Schulhofer, Jeopardy and Mistrials, 125 U.Pa.L.Rev. 449, 527
(prosecution should be required to show a reasonable basis for
refusing to stipulate to a jury of 11). We do not agree. A jury
of 11, or of 6, is not the “same tribunal" with which the case
began. Nor is it the jury of 12 that is guaranteed to the State
and the defendant by state law.
Moreover, the Supreme Court has made it clear that the
"valued right" of which the defendant speaks "must in some
instances be subordinated to the public's interest in fair trials
designed to end in just judgments." Wade v. Hunter, supra, 336
App.15
U.S. at 689. The loss of a juror due to illness or other proper
cause "justifies a discharge of the jury and declaring a mistrial."
Reemsnyder v. State, 46 Md. App. 249, 416 A.2d 767, cert.
denied, 288 Md. 741 (1980). The defendant does not suggest
that the trial judge erred in dismissing the 12th juror -- indeed
the defendant specifically requested that action. The manifest
necessity occurred when the 12th juror was discharged and the
State declined to agree to proceed with fewer than the number
of jurors guaranteed by the applicable Maryland Rule.
The interpretation we accord Maryland Rule 4-311(b)
is similar to that given by the New Jersey Supreme Court to an
analogous rule of that State:
There is clearly no intent that either the State or
the court must give some valid reason for
withholding approval. It is a rule of permissive
expediency rather than of compulsory principle.
State v. Romeo, 203 A.2d 23, 29 (N.J. 1964), cert. denied, 379
U.S. 970. See also Bishop v. State, 347 S.E.2d 350, 352 (Ga.
App. 1986) (where jury is deprived of the statutory minimum
number by the proper removal of a juror, there is manifest
necessity for a mistrial); State v. McFerron, 628 P.2d 440, 443
(Or. App. 1981) (State may not be required to proceed with less
than 12 jurors).
There is no requirement that the trial judge agree with
the State’s decision to decline to continue with 11 jurors or,
where reasons are given by the State, that the trial judge agree
with those reasons. Assuming, without deciding, a contrary
result may be dictated where circumstances demonstrate that
the State's action was intentionally oppressive or otherwise
impermissible, this is not such a case.
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY REVERSED; CASE
REMANDED TO THAT COURT FOR
App.16
TRIAL; COSTS TO BE PAID BY APPELLEE.
App.17
STATE OF MARYLAND * IN THE
v. * CIRCUIT COURT
EDWARD T.GORWELL, IT * FOR
* BALTIMORE CITY
* Case No. 193118001
(Date of Entry: 11/19/93)
o *
Heller, J.
Defendant, Edward T. Gorwell, I, has moved to dismiss
this case under principles of double jeopardy. The State filed a
response, and a hearing was held on November 16, 1993.
BACKGROUND
While pursuing individuals in Leakin Park who were
suspected of car theft and who had fled a vehicle in the early
evening of April 17, 1993, Defendant, a white Baltimore City
police officer, fired a shot from his gun which tragically killed
Simmont Donta Thomas, a 14-year old African-American
youth, one of the fleeing individuals. As a result of this
incident, Officer Gorwell has been suspended without pay from
the Baltimore City Police Department.
Defendant was tried for involuntary manslaughter before
a jury from July 27 to August 3, 1993. Instructions and closing
arguments by counsel were presented on the morning of August
5, 1993. The jury then deliberated for approximately five and
one-half hours until it was dismissed at the end of the day on
App.18
August 5. On the next day, a Friday, only 11 jurors returned to
deliberate. An African-American male juror, Juror No. 2, did
not appear and jury deliberations, at the request of both the
State and Defendant, were suspended. The jury was
sequestered. In the meantime, the Court staff attempted to
locate the juror. Telephone messages were left on an answering
machine at his home but with no response. The jury was
provided lunch and remained sequestered in the Court's
conference room until more information could be gathered.
This Court then directed the Sheriff's Office to go to the
juror’s home, where the sheriffs found his wife. She stated that
she did not know where her husband was and had not seen him
since the previous evening when he had returned home around
dinnertime. At that time, he appeared to be preoccupied, and
he mentioned to her that he was going to pick up his paycheck.
He was home only a short period of time before he left. Tr.,
Aug. 6, p. 6. Subsequent conversations with the foreman at the
juror’s place of employment indicated he had indeed stopped for
his paycheck at approximately 7 o'clock p.m. and told his
supervisor he would be deliberating another day and thus would
not be at work on Friday, although he planned to work overtime
on Saturday. With that information at hand, after consultation
with counsel and the Defendant, the Court requested the
assistance of the police in looking for the juror. There was
some concern for his safety. See Tr., Aug. 6, at 7-8; Tr., Aug.
9 at 3-6.
When Court reconvened on Friday afternoon, there was
no additional information to explain the juror’s disappearance.
The jury was still sequestered, however, although not
deliberating. The police reported that the juror's mother and
sister had been interviewed, but there was no trace of the juror
or his car. A police bulletin was issued with a description of the
juror and his car.
App.19
By this time, it was mid-afternoon and the Court
suggested the jury continue its deliberations with 11 members.
Tr., Aug. 6, at 20. The State recommended that the jury be sent
home and brought back on Monday morning so that more
information could be obtained concerning Juror No. 2's failure
to return. The State's Attorney stated that by Monday, "If he is
not here for a reason not associated with this case, because of
his personal life, proceeding with eleven would be acceptable."
Id. at 21. The Court concurred with the State, and as no further
information had been obtained, the trial was recessed. The jury
was not sequestered for the weekend but in order to protect the
integrity of the trial, the jurors were instructed to refrain from
any contact with media accounts of the trial and not to discuss
the trial with anyone. Id. The jurors, by way of written
communication with this Court, indicated they would abide by
these restrictions.
After the jury was sent home on Friday afternoon, the
missing juror telephoned this Court's chambers between 3:30
p.m. and 4:00 p.m. He stated he had been assaulted by a group
of teenagers but that he was unharmed. He believed at least one
of them was white. The Court then directed the police to pick
up the juror and bring his to the Courthouse. Even before the
juror was questioned about his story, the State, based on his
allegations of the assault, stated, "Your Honor, we have
conferred and based on just the allegation that the juror made,
it is going to be impossible for us to accept a jury of less than
twelve." Tr., Aug.6, at 13.
An in camera on the record proceeding was held with
the juror, counsel, and Defendant to hear the juror’s explanation
for his failure to appear. After hearing the story, the prosecutor
observed that although he might "go along" with Juror No. 2
remaining on the jury, he would never agree to a jury without
Juror No. 2. “But with him off the jury, because he was
App.20
attacked, or claims to have been attacked by three white youths,
there is just no way we would consent." Id. at 39. The State's
reason on Friday afternoon was as follows:
Mr. Doory: Because, Your Honor, if, in
fact, this jury were to come back with a not
guilty verdict, I don't see how it would be
acceptable to the public or people of the State
that criminal action by some people, who the
public could view as interested in this case,
would change the balance of the case.
Id. at 41.
Defense counsel made clear he was not going to agree to the
juror being placed back on the jury. At the same time, he
indicated the defense believed deliberations could continue with
the 11 jurors. Id. The Court observed "that whatever happened
to him, whether it was a drunken stupor, he gave his money to
a friend, or somebody robbed him and took it, it had nothing to
do with this case." Id. The Court stated to the prosecutor that
Friday afternoon:
. . . you are putting your office in a
position where a juror who says he was robbed,
and it has nothing to do with the case, and
merely because the alleged robbers are white,
you refuse to go forward with eleven jurors,
although you had said earlier in the day that, if,
in fact, it turned out that whatever happened had
nothing to do with the case, that you would be
willing to go with eleven jurors...
Id. at 43.
After more discussion, the juror was excused, and the Court
requested that he return on Monday. See Tr., Aug. 6, at 16-38.
On Monday, the juror repeated his story in open court,
out of the presence of the jury. See Tr., Aug. 9, at 9-16. After
App.21
considering the juror’s story, Defendant's counsel continued to
express problems with permitting the juror to resume
deliberations. Questions were raised as to the veracity of the
story and the inability to verify it. The Defendant objected to
his continuing on the jury, but the State took no position. Id. at
16-17. This Court concluded that the juror’s actions reflected
“a serious breach of responsibility and definite misconduct as a
juror." Id, at 18. He had been part of the jury for almost two
weeks and well aware of the responsibilities cast upon him and
the significance of the case. The Court said at the time:
Juror No. 2 had to have been aware how,
therefore, if he did not appear on Friday
morning as ordered by the Court, deliberations
were going to be severely disrupted, and,
perhaps, a mistrial be required. And after
listening to him, this Court concludes that he
made a knowing and deliberate decision not to
come into Court or call the Court or the police,
or his wife or his mother or his sister, and
rather, spent a great deal of Thursday evening
and Friday in his car in a parking lot and,
apparently, drinking a fifth of Jack Daniels and
These actions are not actions of
someone this Court believes who appreciates
the responsibility of a juror. These actions do
not reflect, in this Court's view, an individual
capable of rendering a fair and impartial verdict.
There is concern, also, if he were to be
permitted to rejoin the jury of the potential
contamination of what has occurred on the
remainder of the jurors.
App.22
Id. at 19-20. In addition, the Court observed that the juror had
never apologized or seemed in any way to acknowledge that his
behavior had seriously disrupted the trial process. Id. at 21.
The juror was excused and subsequently found in contempt of
court.
However, merely excusing the juror (with no objection
by the State), did not necessitate a mistrial. To the contrary,
this Court called attention to Maryland Rule 4-311(b) which
would have permitted the parties to stipulate that the jury
should consist of less than 12. The Court said at that time:
The ultimate issue that remains in the
case is whether the Defendant can obtain a fair
and impartial verdict. There are eleven jurors
remaining. They are a representative group of
the community in both their racial component
[and] their gender component. These
individuals have, throughout this trial, listened
diligently, have been attentive, and have always
been on time.
Moreover, a great deal of time, effort,
and money, resources, have gone into this trial.
Until Friday morning, this court believes the
case went forward with both counsel providing
a diligent representation of the respective
interests in order to ensure the integrity and
fairness of the trial process.
This Court does not believe that one
errant juror who made a deliberate choice not to
*Md. Rule 4-311 (b) reads in pertinent part, "A jury
shall consist of 12 persons unless the parties stipulate at any
time in writing or on the record that the jury shall consist of
any number less than 12."
; App.23
come in or call should so disrupt the process
that the entire trial should not be permitted to
go forward. This Court believes it is important
for all concerned, the State and the Defendant,
that theses proceedings conclude, that there be
a finality than later, in what has
occurred.
Id. at 21-22.
The Court then asked the parties if they would agree to go
forward with 11 jurors. Defense counsel indicated he was
"inclined" to go ahead with 11, and that Officer Gorwell had
indicated he would agree to go with 11. Id. at 23. The Court,
before hearing the State's response to the request, stated the
following:
THE COURT: Mr. Doory, before I hear your
answer, I want to impress upon the State the
Court's belief, in view of the fact that the
Defendant is willing to go forward, subject to
that voir dire process, that this trial proceed.
Witnesses were brought in from out of town.
People came in and testified and, as I have
mentioned, time, effort, and a great deal of
resources were spent on this trial.
There are eleven people left. They are
black and white. They are male and female.
They must come forth with the unanimous
verdict. It's not a majority rule verdict in this
country. The Court strongly believes and has
confidence that the eleven jurors that remain can
deliberate, and hopefully, come to a unanimous
verdict one way or the other.
Id. at 23-24.
App.24
The Court gave the State's Attorney a recess and asked him to
talk with others in his office and to return with a response.
Upon return, the prosecutor stated that the State would not
agree to the jury of 11 remaining people because it was
concerned about the time delay between the conclusion of
evidence and the proposed resumption of deliberations. Id. at
24. In addition, the State's Attorney expressed concern about
the “public acceptance of a verdict in this case" given the fact
that one of the jurors had to be removed. Id. at 25.
The Court then suggested that the remaining | 1 jurors
be voir dired to address the State's concern. The State rejected
the offer and indicated it would not consent to a jury of 11. At
that time, to the surprise of the Court, defense counsel, without
consultation with his client, suggested one option would be for
this Court to decide the case, without a jury. The State's
Attomey took no position on the request. However, in view of
the belated request for a bench trial® and voicing concern about
the public's confidence in one individual rendering a verdict after
all that had happened, this Court declined to accept that option.
Id. at 28. The Court then stated its dismay with the State's
decision and concluded that because the State refused to agree
to an 11-person jury, there was no option but to declare a
mistrial. Once again the Court said, "[BJut other than
expressing as strongly as the Court can, its disappointment with
the State's decision not to agree to go forward with these 11
people of the community so that they could render a unanimous
verdict, the Court has no choice but to declare a mistrial, which
is now declared. It is a waste and it was unnecessary." Id. at
30.
DISCUSSION
®See Md. Code Cts. & Jud. Proc. Art., § 8-305 (1989
Repl. Vol.); Md. Rule 4-246 (b).
App.25
General Principles
The Double Jeopardy Clause of the Fifth Amendment
protects a defendant in a criminal proceeding from repeated
prosecutions for the same offense.’ The Double Jeopardy
Clause of the Fifth Amendment was held to be applicable to the
State through the Fourteenth Amendment in Benton v.
Maryland, 395 U.S. 784 (1969). The relevant Supreme Court
cases governing the application of the Double Jeopardy clause
to a retrial following the declaration of a mistrial have been
comprehensively discussed by our appellate courts. See, e.g.
State v. Crutchfield, 318 Md. 200 (1989); In Re Mark R., 294
Md. 244 (1982); Cornish v. State, 272 Md. 312 (1974); Fields
y. State, 96 Md. App. 722 (1993); McCorkle v. State, 95 Md.
App. 31 (1993). These cases recognize that there are two
wholly different situations leading to the declaration of a mistrial
and that those situations, in the double jeopardy context, are
governed by different legal standards. The first situation is
when, as in this case, the defendant has objected to the
declaration of a mistrial and at the prosecutor's request or sua
sponte, the court has declared a mistrial. The seminal Supreme
Court decision in this regard is United States v. Perez, 22 U.S.
(9 Wheat.) 579 (1824). There, the court held that the Fifth
Amendment did not preclude a retrial where the mistrial was
declared because of a jury's inability to reach a verdict. The
basic principles for determining the permissibility of a retrial
following a mistrial were set forth by Mr. Justice Story who
ruled that a new trial may be held, without violation of the
Double Jeopardy Clause, only if there was a "manifest necessity
’The Fifth Amendment to the Constitution of the
United States, reads in pertinent part, as follows: "[No
person] shall . . . be subject for the same offense to be twice
put in jeopardy of life or limb.
App.26
for the [mistrial], or the ends of public justice would otherwise
be defeated.” 22 U.S. (9 Wheat.) at 580. See also Richardson
vy. United States, 468 U.S. 317, 323-34 (1984); Oregon v.
Kennedy, 456 U.S. 667, 672 (1982); Arizona v. Washington,
434 U.S. 497, 505-06 (1978); Illinois v. Somerville, 410 U.S.
458, 461-62 (1973).
The second type of situation, not relevant here, is when
the original trial ends with the defendant either requesting or
consenting to a mistrial. In this context, the Double Jeopardy
Clause does not bar a new trial unless the prosecutor has
intentionally subverted the constitutional protections afforded
to a defendant. Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
Thus, when a defendant has either consented to or requested a
mistrial, the defendant may invoke the bar of double jeopardy
only in “those cases in which the conduct giving rise to the
successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial." Id. at 679. See also
Booth v. State, 301 Md. 1, 5 (1984).
The reasons for precluding a second trial where the
defendant's first trial was terminated by a mistrial without his
consent were summarized by the Supreme Court in Arizona v.
Washington as follows:
Because jeopardy attaches before the judgment becomes
defendant's “valued right to have his trial completed by
a particular tribunal." The reasons why this "valued
right" merits constitutional protection are worthy of
repetition. Even if the first trial is not completed, a
second prosecution may be grossly unfair. It increases
the financial and emotional burden on the accused,
prolongs the period in which he is stigmatized by an
unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent defendant may be
App.27
convicted. The danger of such unfairness to the
defendant exists whenever a trial is aborted before it is
completed. Consequently, as a general rule, the
prosecutor is entitled to one, and only one, opportunity
to require an accused to stand trial.
434 U.S. at 503-505." This language was repeated by our
Court of Appeals in In Re Mark R., 294 Md. at 249. Its
rationale has also been set forth in Gilbert & Moylan, Maryland
Criminal Law, § 37.7 (1983).
There are no “hard and fast rules for determining when
manifest necessity exists." State v. Cruthfield, 318 Md. at 208.
The “manifest necessity" standard is not one that can be applied
mechanically or without attention to the particular facts and
circumstances confronting a trial judge. U.S. v. Jom, 400 US.
470, 480 (1971); In Re Mark R., 294 Md. at 250. Both the
applicable in determining »-hether there was manifest necessity
for a mistrial. At one extreme are situations where there is a
reasonable alternative to the declaration of a mistrial but the
State has acted in a manner which prevents the adoption of that
alternative, thereby giving the State an unfair advantage over
the defendant. In this context, there would be no manifest
necessity for a mistrial. See, ¢.g., Arizona v. Washington, 434
U.S. at 507-08; In Re Mark R., 294 Md. at 250-251.
*These concepts were also relied on by Mr. Justice
Black in Green y. United States, 355 U.S. 184, 187-88
(1957) as precluding "the State with all its resources and
power” from making “repeated attempts to convict an
individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity,... . "
App.28
Crutchfield, 318 Md. at 209; Cornish, 272 Md. at 318. It is
clear, however, that manifest necessity does not exist “where
the mistrial is declared s0 as to afford the prosecution a more
favorable opportunity to convict... ." Downum vy. United
States, 372 U.S. 734, 736 (1963); Crutchfield, 318 Md. at 210.
Moreover, it is the prosecutor who "must shoulder the burden
of justifying the mistrial if he is to avoid the double jeopardy
the objection of the defendant." Arizona v. Washington, 434
U.S. at 506; In Re Mark R., 294 Md. at 250. Further, the court
should “resolve any doubt" in favor of the defendant. Downum
y. United States, 372 U.S. at 738.
Case at Bar
In this case, the State contends that the ultimate reason
for mistrial was that Juror No. 2 refused to continue as a juror
after deliberations had begun. See State's Resp. at p. 5. It is
true that the juror’s failure to return to deliberations, and this
Court's subsequent conclusion that he was unfit to continue jury
duty, was the precipitating factor preventing the jury from
continuing with 12 individuals. The reasons for the
disqualification of Juror No. 2 have been fully set forth above.
Courts have regularly permitted a retrial when a mistrial is
caused by the discovery of a juror's possible bias or where
something occurred to render "doubtful" a juror’s impartiality.
Commish, 272 Md. at 319; Thompson vy. United States, 155 U.S.
271, 274 (1894). However, as this Court emphasized to the
State, Md. Rule 4-311 (b) permits the jury to continue its
deliberation as a body of 11.
"[A] retrial is barred by the Fifth Amendment where
reasonable alternatives to a mistrial... are feasible and could
App.29
cure the problem." Cornish, 272 Md. at 320; see also
Crutchfield 318 Md. at 213. Proceeding to verdict with a jury
of 11 was a reasonable alternative to a mistrial. The 11 people
who remained were representative of the community in both
their race and gender. Moreover, pains had been taken to
protect them from publicity and to ensure their deliberations
were not tainted in any manner by the absence of Juror No. 2.
It is the State's posture, however, that Md. Rule 4-311 (b) gives
it the absolute right to decline a jury of less than 12, regardless
of double jeopardy considerations and only if this Court finds
"bad faith" in its decision or Md. Rule 4-311 (b)
unconstitutional may the application of double jeopardy bar
Manifest Necessity
First, the cases cited by the State, Oregon v. Kennedy,
456 U.S. 667 (1982) and Booth v. State, 301 Md. 1 (1984)
were discussions of the well-recognized exception to the
general rule that a retrial is not normally barred by the
prohibition against double jeopardy where a defendant seeks or
consents to the mistrial. That exception occurs when there is
judicial or prosecutorial “over-reaching." See Tabbs v. State,
43 Md. App. 20, 25 (1979). In this case, the Defendant did not
seek or consent to the mistrial. Thus, the appropriate issue is
whether there was manifest necessity for the declaration of a
mistrial, or, as stated above, whether there was a reasonable
alternative to the declaration of a mistrial. The test is not
whether the prosecutor acted in bad faith. For instance, in
Downum vy. United States, 372 U.S. 734 (1963), the prosecutor
had requested that the jury be discharged because his key
witnesses were not present. His motion was granted over the
defendant's objection, and two days later the case was started
again, a second jury impanelled, and the defendant tried and
convicted. On these facts, the Supreme Court held the
App.30
defendant had been subjected to double jeopardy and the
convictions were reversed. The majority opinion stated that
discretion to discharge a jury before verdict should be exercised
“only in very extraordinary and striking circumstances." 372
U.S. at 736. In particular, the Court found the prosecutor was
responsible because the witnesses’ unavailability had been
known before the jury was impanelled. Significantly, there was
no finding of bad faith on the part of the prosecutor. Rather,
the court stated, "We resolve any doubt in favor of the liberty
of the citizen, rather than exercise what would be an unlimited,
uncertain, and arbitrary judicial discretion." 372 U.S. at 738,
quoting United States v. Watson, 28 Fed. Cas. 499, 501
(S.D.N.Y. 1868). Indeed, the dissent recognized both the
apparent good faith and diligence of the prosecutor. Id, at 743.
Also, the court had the alternative of continuing the trial on the
The Supreme Court reaffirmed Downum in United
States v. Jorn, 400 U.S. 470 (1971), and stressed that the
Double Jeopardy Clause protects a defendant from the strain
and insecurity of retrial even when oppressive government
tactics are absent. [I]ndependent of the threat of bad faith
conduct by judge or prosecutor, the defendant has a significant
interest in the decision whether or not to take the case from the
jury when circumstances occur which might be thought to
warrant a declaration of mistrial." Id, at 485. Jom was a case
where a court, without considering alternative remedies, sue
sponte dismissed a jury after the government had called a
witness the judge believed had not been adequately informed of
his constitutional rights. Thus, in both Downum and Jorn, the
court upheld double jeopardy claims in absence of actual or
potential harassment or bad faith by the prosecutor of the
defendant and, indeed, in the absence of any identifiable
prejudice to the defendant.
App.31
In contrast, manifest necessity was found in Illinois v.
Somerville, 410 U.S. 458 (1973). There, the trial court had
declared a mistrial over the defendant's objection when it was
disclosed, after a jury was sworn in but before any evidence was
presented, that an indictment contained a defect that under
Illinois law could not cured by amendment. The result was that
on appeal, its defect could be asserted to overturn any judgment
of conviction. In that opinion, Justice Rehnquist held that the
court could reasonably have concluded that the "ends of public
justice” would be defeated by having permitted the trial to
continue. Somerville is distinguishable from the current case in
that although the jury had been impanelled and sworn, the
prosecuting attorney realized the fatal deficiency in the
indictment before any evidence had been presented. In
addition, unlike Md. Rule 4-311 (b), there was no alternative
because the defect could not be cured. At the same time, the
Somerville opinion recognized that the declaration of a mistrial
“on the basis of a rule. . ton ne gi
manipulation would involve an entirely different question. .
" 410 US. at 464.
In this case, this Court concludes there was both
prosecutorial manipulation and a reasonable alternative. The
case this Court has found most on point is Hutchens v. District
Court, 423 P. 2d 474 (Okla. Cr. 1967). There, the appellate
court, on facts similar to these, held there was no "cogent or
compelling reason" for a prosecutor to refuse to go forward
with a jury of 11 members. It observed the prosecutor's refusal
" has the appearance of being an arbitrary or adamant position,
not based upon any necessity whatsoever... Insofar as a
unanimous verdict is required to sustain a conviction, it would
appear that the State's chances of obtaining such a unanimous
conviction with an 1 l-man jury would be enhanced." 423 P. 2d
App.32
at 478. The Court makes a finding of fact that the State's
refusal to go forward with less than a broad-based jury of 12
individuals at the conclusion of a long and expensive trial
manifested a deliberate intent on its part to afford itself a more
favorable opportunity to convict. The court also finds that a
jury of less than 12 was a reasonable alternative, and that the
State has not met its burden of proving otherwise. Under those
circumstances, manifest necessity does not exist. Crutchfield,
318 Md. at 210.
Md. Rule 4-311 (b)
The State contends that only if this Court finds Md.
Rule 4-311 (6) unconstitutional, may the principles of double
jeopardy bar retrial of the Defendant. The issue, however, is
not the constitutionality of the rule. Rather, the question is
whether the State's right to consent to a jury of less than 12
members under Md. Rule 4-311 (b) outweighs the Defendant's
right not to be placed twice in jeopardy under the Fifth
Amendment of the United States Constitution. To begin with,
it is far from clear that the State has a State constitutional or
common law right to insist on a jury of 12 persons if the
defendant is willing to be tried by a lesser number. In Maryland,
the right to a jury trial is found in Articles 5 and 21 of the
Maryland Declaration of Rights.’ Under Maryland law, a
*Article 5 provides in pertinent part "That the
Inhabitants of Maryland are entitled to the Common Law of
England and the trial by Jury, according to the course of that
Law... ."
Article 21 provides "That in all criminal prosecutions,
App.33
defendant may waive the right to trial by jury before the
commencement of the trial. Md. Code Ann. Cts. & Jud. Proc.
Art., §8-305 (1989 Repl. Vol.); Md. Rule 4-246 (b). If the
Court finds that the waiver is made knowingly and voluntarily
and thus accepts it, the State does not have the right to elect
trial by jury. Md. Rule 4-246 (a). Since colonial times,
Maryland has freely permitted waiver of jury trial in criminal
cases. Bond, "The Maryland Practice of Trying Criminal Cases
by Judges Alone, Without Juries," 11 A.B.AJ. 699 700-701
(1925). Indeed, historically agreement of both parties has not
been required for a criminal trial without jury. Id. Of
significance, [t]he accused alone, by his election" could compel
trial without jury. Bond at 701.
In addition, not only has Maryland from its early history
permitted waiver of jury trials, by 1776, it had long since
departed from the English Common Law in permitting waiver
of the 12-person jury. State v. Kenney, 327 Md. 354, 360
(1992). Kenney held there is no “imperative requirement of a
12-person jury which cannot be waived" under the Maryland
Declaration of Rights. Id. at 359. Likewise, the Supreme
Court in Williams v. Florida, 399 U.S. 78, 102 (1970) found,
"The fact that the jury at common law was composed of
precisely 12 is a historical accident, unnecessary to effect the
purposes of the jury system and wholly without significance
except to mystics." Under the precedent set by Williams, there
is no federal constitutional right to a 12-person jury. Id, In
sum, under the Maryland Declaration of Rights, a defendant has
a right to trial by jury in criminal cases, but it is a right that may
be waived, and that waiver is not conditional upon the consent
of the State. Moreover, as discussed in Kenney and Williams
every man hath a right. . . to a speedy trial by an impartial
|, alain
App.34
under both the State and federal constitutions, a 12-person jury
appears to be a “historic accident."
What is important, however, is regardless of whether the
State's right under Maryland Rule 4-311 (b) has its roots in the
State constitution, common law, or the Maryland court rules,
the State's exercise of that right cannot deprive a defendant of
his or her double jeopardy protections under the Fifth
Amendment." The Supremacy Clause of the United States
Constitution, Art. VI., must always be borne in mind.
This Constitution. . . shall be the supreme Law
of the Land; and the Judges in every State shall
be bound thereby, any thing in the Constitution
or Laws of any State to the Contrary
notwithstanding.
It must also be recalled that a defendant's right to trial by jury
in criminal cases is specifically designed "to prevent oppression
by the Government." Duncan v. Louisigna, 391 U.S. 145, 155
(1968). The State's interest in the context of double jeopardy
is to "serve the ends of public justice." [llinoi
410 U.S, at 464. That interest is satisfied as long as the number
of the jury is “large enough to promote group deliberation, free
from outside attempts at intimidation, and to provide a fair
possibility for obtaining a representative cross-section of the
community.” Williams, 399 U.S. at 100. The State's interest
was certainly met in this case with the remaining 11 individuals
Similarly, although there is no constitutional basis
for the granting of peremptory challenges, neither the State
nor a defendant may exercise peremptory challenges in a
discriminatory manner. Georgia y. McCollum, U.S. __,
112 S.Ct. 2348 (1992); Batson v. Kentucky, 476 U.S. 79
(1986); State v. Gorman, 324 Md. 124 (1991); Gilchrist v.
State, 97 Md. App. 55 (1993).
App.35
on the jury.
When it is the State that objects to an 1 1-person jury, at
least one commentator has observed that a rule such as Md.
Rule 4-311(b) granting a prosecutor broad power to foreclose
the alternative of a reduced panel "invites manipulation and
harassment, and exposes defendants to the potentially severe
burden of a second, long trial, regardless of whether the
government's interest of a complete jury of 12 is a substantial
one in the particular case." See S. Schulhofer, "Jeopardy and
Mistrials," 125 U. of Pa.L.Rev. 499, 524-27 (1977)." As
explained in this article, the prosecutor's interest in seeing that
cases are tried before a tribunal which is fair and impartial is
certainly met if a panel is reduced from 12 to 11, as it remains
"sufficiently large to provide solemnity and force to its verdict."
Id. at 526. The article concludes
Prosecution objections to an eleven member
jury, therefore, seldom will have a legitimate
basis, and in most instances this alternative
"This law review article is the only one this Court has
found discussing the issue of the 1 1-member jury and double
jeopardy. In particular, the article discusses the problem in
regard to Fed. R. Crim. P. 23(b) when it was similar to Md.
Rule 4-311(b) and before it was amended in 1983. In that
context, the author observed that in order to construct the
federal rule as "consonant" with double jeopardy principles,
an interpretation might require that when necessary to avoid
mistrial, a prosecutor's stipulation to a panel of less than 12
may not be unreasonably withheld. The 1983 amendment
permits a court, if it "finds it necessary to excuse a juror for
just cause after the jury has retired to consider its verdict," to
permit the remaining 11 jurors to continue deliberations to
reach a valid verdict.
App.36
jury.
Moreover, the fact that this trial was at its final stages
mitigates agains: the State's indiscriminate exercise of its right
under Md. Rule 4-311(b). In Illinois vy. Somerville, the court
granted a mistrial after the jury had been iipaneled and sworn,
but before any evidence was taken. At this early stage of a trial,
a defendant's interest in avoiding reprosecution can be
considered "weak" and the danger of reprosecution
manipulation to gain a tactical advantage in a retrial is minimal.
Schulhofer, at 507. But once, as in this situation, evidence has
been taken, strategies of cross-examination revealed, and
weaknesses in a case uncovered, “stringent safeguards” are
appropriate if the difficult continuing a trial is caused by the
prosecutor. Id. at 509.
Even when the first trial has produced no
specific tactical setback to the prosecution and
even when there is no conceivable possibility of
governmental bad faith, either in the
prosecutor's triggering of the mistrial situation
or in the judge's selecting among alternatives for
resoling it, the declaration of mistrial will
sharply increase the overall burden of defending
the case and tend to increase the prospects for
conviction in ways often difficult or impossible
to demonstrate.
Id. at p. 511.
Therefore, if the State invokes its right to refuse a jury with less
than 12 under the rule before a trial or at an early state, before
testimony and strategies are uncovered, double jeopardy
App.37
interests will be weak. Likewise, if the State exercises its right
of "veto" because of legitimate concerns over the size or
representativeness of a jury, its right under Md. Rule 4-31 1(b)
may outweigh any double jeopardy interests. The
constitutionality of the rule is not at issue. It is only when the
State's consent under the rule is intentionally withheld under
circumstances that will unquestionably impair the command of
the Double Jeopardy Clause that the State's right under the rule
must yield.
A Reasonable Alternative
Finally, and most importantly, there was a reasonable
alternative to the mistrial.’ It must be emphasized that the
State's reason for not giving consent to a | 1-member jury was
expressed concern about the public acceptance of the verdict.
There was no basis for that concern. Extensive questioning of
Juror No. 2 had revealed that his alleged assault had absolutely
nothing to do with the players in this trial, and there is not even
a hint that it was racially motivated.
The State's imposition of race into its decision with its
*This case is therefore distinguished from the situation
in Reemsnyder v. State, 46 Md. App. 249, 257 (19880)
where the Defendant's refusal to proceed to verdict with 11
jurors resulted in "manifest necessity" of the mistrial. See
Also Gilbert & Moyland, Maryland Criminal Law, §37.7
(1983) at p. 447, which states:
The animating principle clearly is that since we are
protecting the right of a defendant to have the tribunal held
together until a verdict is reached, all alternatives less drastic
than the declaration of a mistrial should be considered before
the more drastic step is taken. Consideration at least should
be given to such alternatives as a jury of less than twelve....
App.38
stance that "certain segments” of the community could not have
accepted the verdict because Juror No. 2 was allegedly
assaulted by white teenagers is an affront to the diverse
population that makes up our community. As the Court stated
to the prosecutor:
Everybody here is quite sensitive to the
issue of race if that is an issue to go into this
case. Merely because three teenagers who
happen to rob a black person are white, I don't
believe should be sufficient for the State's
Attorney to believe that somehow the public can
have an inference that that had a connection
with white people nebulously involved in the
case. I do believe it insults the intelligence,
integrity, and concern and justice of the general
community.
Tr., Aug. 9, at 44
This was so, of course, because as the State conceded. there is
no evidence the assault incident was in any way connected with
the case. In contending the public would not accept a verdict
from the 11 remaining people, the State ignores the emotional
and economic strain already placed on the Baltimore City
community by the trial, replete with huge daily media coverage.
Certainly, it was in the community's interest to bring a finality
to these proceedings.
Moreover, there is no basis for the State's posture that
there was too much of a delay between the conclusion of
evidence and the resumption of deliberations on August 9th. It
was the State's Attorney who suggested on Friday, August 6th,
that the decision as to whether to proceed with 11 jurors be
postponed until Monday when if it were determined the missing
juror's absence had nothing to do with the case, "proceeding
with eleven [jurors] would be acceptable." Tr, Aug. 6, at 21.
App.39
Also, while it is true the presentation of evidence had concluded
on Tuesday evening, closing arguments had taken place on
Thursday, and the jury had deliberated over five hours that day.
In fact, by resuming on Monday, only one day of deliberations
was lost.
CONCLUSION
In sum, the State has set forth no justification for
depriving this Defendant of his “valued right to have his trial
completed by a particular tribunal," which goes to the very heart
of the protection afforded by the Double Jeopardy Clause.
United States v. Jom, 400 U.S. at 484, quoting Wade v.
Hunter, 336 U.S. 684, 689 (1949). An unarmed African-
American teenager is dead, killed by the bullet of a white
Baltimore City police officer. The victim's only offense was the
apparent joy ride he took in a stolen car. The loss of his life is
a tragedy to his unfulfilled potential and the grieving family who
survive him. However, the Defendant in this case, like all those
charged with crimes under the American legal system, is entitled
to a fair trial. It is important for the State to prosecute
vigorously those individuals charged with crimes. It is equally
important that the State deals fairly with those it prosecutes. It
is with these considerations in mind, the Court concludes that
the State has failed to meet its "heavy burden" of demonstrating
there was manifest necessity for this mistrial.
ORDER
For all of the aforegoing reasons, it is this 19 day of
November, 1993, HEREBY ORDERED that this case be
DISMISSED.
Judge Elien M. Heller
Ellen M. Heller, Judge
cc: Timothy J. Doory, Assistant State's Attorney
Henry L. Belsky, Esquire
App.40
STATE OF MARYLAND, * IN THE
Plaintiff ” CIRCUIT COURT
v. ” FOR
EDWARD T. GORWELL, II* BALTIMORE CITY
Defendant . CASE NO. 193118001
. * . * . . * * *
ORDER
It is this 2] day of August, 1995, hereby:
ORDERED, that the Defendant's Motion to Stay the
State's Jurisdiction over this matter be granted until a final
disposition is reached by the Supreme Court of the United
States.
IUDGE ELLEN M. HELLER
JUDGE
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.