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The question whether under the Double Jeopardy Clause of U.S. Const. amend. V there can be a new trial after a mistrial has been declared without the defendant's request or consent depends on whether there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated. Different considerations obtain, however, when the mistrial has been declared at the defendant's request.
Respondent hired counsel who represented him until five days before his trial, when he retained new counsel to conduct his defense. The trial judge repeatedly cautioned respondent's new counsel during his opening statement until the counsel was finally excluded from the trial. The trial judge offered respondent three alternatives, including staying the trial to review the propriety of the expulsion, continuing with original counsel, or declaring a mistrial to permit respondent to obtain other counsel, the last of which respondent accepted. Before his second trial, respondent sought to dismiss on double jeopardy grounds. The motion was denied and respondent was convicted. The appellate court reversed the conviction, finding that the retrial violated the Double Jeopardy Clause of the Fifth Amendment and that the earlier mistrial should have been treated as though the trial judge declared a mistrial over the objection of respondent. The United States sought review of the decision.
Did the respondent’s retrial violate the Double Jeopardy Clause of the Fifth Amendment?
The Court reversed, finding that double jeopardy did not attach because the mistrial had been respondent's choice. There was no judicial overreaching and the expulsion of respondent's counsel by the trial judge was not done in bad faith where the new counsel was guilty of improper conduct and where the trial judge expected the trial to continue with original counsel.