Prosecutor Baiting a Mistrial Bars Any Future Retrial for the Same Crime

After making flagrant statements at trial in an attempt to provoke a mistrial, a prosecutor created a double-jeopardy bar against retrying the same defendant

State v. Zisa, N.J. Super. Ct. Law Div., No. 10-10-01812-I, 8/23/16.

   The New Jersey Supreme Court found that purposefully unprofessional conduct on behalf of the prosecution team in a criminal trial in an attempt to bait a mistrial bars a retrial of a defendant. This case follows a similar line of cases stemming from Oregon v. Kennedy, which barred retrials after a successful defense motion for a mistrial if the defendant could show that the prosecutor in the case purposefully provoked the defense to make the mistrial motion in the first place.
 

   The court reached its conclusions because the prosecutor continuously made inadmissible, improper, and prejudicial statements about the evidence and facts about a state witness, even though it was unsubstantiated and inadmissible. The court said, “It strains credulity that such a seasoned prosecutor, with years of trial experience, could be so ignorant to the rules of evidence.” Additionally, the court noted the prosecutor’s unusual ambivalence towards the five mistrial motions made by the defense. 
 

http://src.bna.com/ibq

No New Trial: Juror Was Not Asleep, Just Focusing With Eyes Shut

No new trial is required because a juror that was presumed to be asleep was actually focusing with their eyes closed, and only during non-consequential moments of the trial

State v. Mohammed, 2016 BL 239035, N.J., No. A-70, 7/25/16.

   After making a decision about whether a juror was deemed to be inattentive and asleep during a trial, the New Jersey Supreme Court set out new protocol for allegations of a juror falling asleep or being inattentive. Generally, judges have broad discretion to correct inattention, whether they observed the behavior or not. The court held that if a trial judge finds a juror inattentive during a non-consequential part of the trial, then the judge has a wide discretion to fix the problem, with the possibility of review under the “harmless error” standard. If the juror was not paying attention during an important part of the trial, then “the judge must take appropriate corrective action, such as replaying a tape recording or videotape, rereading a portion of the jury charge, or excusing the juror, among other steps.”

   After establishing this protocol, the court found that there was no harm due the actions of the inattentive juror. The alleged instances occurred during pretrial instructions, which were deemed inconsequential by the supreme court. During the other instance of inattention, the trial judge, through his personal observations, found the juror to be paying attention, just with his eyes shut to help “focus.”

http://www.bloomberglaw.com/public/document/State_v_Mohammed_No_A70_September_Term_2014_2016_BL_239035_NJ_Jul.

The Stop and Search of a Car for Using Their High Beams Considered Unreasonable

A traffic stop of a car for using high beam headlights in a residential area, although reasonable, was mistaken, making the stop and subsequent search without cause.

State v. Scriven, 2016 BL 232318, N.J., No. A-11, 7/20/16.

   A police officer’s stop and search of a vehicle driving with their high beams on in a residential neighborhood was not reasonable, the New Jersey Supreme Court held. During the search, the officer found an unlicensed firearm in the possession of the driver. The language of the high beam law under the New Jersey law requires drivers to “dim their high beams only when approaching an oncoming vehicle.” The court further elaborated by saying “The statute does not state that high beams may be used only on rural or unlit suburban roads at night, but not on a seemingly well-lit deserted city street at 3:30 a.m. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle.”

   Prosecutors in the case argued that the initial stop and discovery of an unlicensed handgun was justified according to a North Carolina decision, which provides that a reasonable mistake of law that forms the basis for a finding of reasonable suspicion justifies a stop. The New Jersey court disagreed. Prosecutors also argued that the officer appropriately acted under the community-caretaker doctrine because “something could have been wrong with the driver” or the high beams created a public safety hazard. This argument, like the other, was also rejected. The officer’s only purpose in stopping in the driver was because he thought he was breaking the law, which was a mistake.

http://www.bloomberglaw.com/public/document/State_v_Scriven_No_A11_September_Term_2015_2016_BL_232318_NJ_July.