People v. Hicks

528 N.W.2d 136, 447 Mich. 819

• Court: Michigan Supreme Court
• Decided: December 30, 1994
• Docket: Docket Nos. 97552, 98753, (Calendar Nos. 6-7)
• Status: Published

Opinions

Griffin, J.

We are required in each of these consolidated appeals to determine whether the constitutional bar against double jeopardy precludes retrial after a judge has recused herself in the middle of a bench trial and the successor judge has declared a mistrial. Our answer turns on the scope of the manifest-necessity exception to the double jeopardy bar and its application to the particular facts presented. We conclude that the Double Jeopardy Clause allows retrial of defendant Hicks, but precludes retrial of defendant Bellew. Accordingly, we would reverse the Court of Appeals decision in People v Hicks,1 and we would affirm its decision in People v Bellew.²_

I

Both cases arise out of bench trials presided over by Judge Daphne Curtis of the Detroit Recorder’s Court, and involve her failure before trial to disclose a relationship with one of the parties. In each case, the prosecutor learned of the relationship and directed the court’s attention to this information after several witnesses had testified. A midtrial dilemma ensued when the judge abruptly recused herself and refused to participate further in either trial.

A. PEOPLE v HICKS

Defendant Hicks was charged with assault with intent to murder³ and possession of a firearm during the commission of a felony⁴ in a bench trial that commenced on September 9,1991. During the lunch recess, after three witnesses had testified, the assistant prosecutor discovered that defendant’s brother was Gregory Hicks, a friend of Judge Curtis who had served as her campaign manager when she was elected to judicial office. After the lunch recess, the assistant prosecutor brought this fact to the attention of Judge Curtis. She admitted that a person named Gregory Hicks had been her campaign manager and friend for the last ten years, and then she invited the parties to comment on their respective positions.

Defense counsel argued against the judge’s recusal, indicating that Gregory Hicks would not be a witness in the case. The assistant prosecutor declined to comment. Judge Curtis then recused herself.

Shortly thereafter the parties appeared before Judge Terrance Boyle.⁵ He offered to continue the trial before him, but defendant rejected this proposal. Judge Boyle then entered a mistrial "as an official thing to clean up what happened there,” and he denied defendant’s motion to dismiss the case on double jeopardy grounds, reasoning that Judge Curtis’ recusal after acknowledging that she might be affected by her knowledge of the questioned relationship was the functional equivalent of a mistrial prompted by manifest necessity.

A divided panel of the Court of Appeals reversed and dismissed the case, concluding that "manifest necessity [did not exist to warrant] a mistrial over defendant’s objection and the state is barred from placing defendant in jeopardy a second time on these charges.” 201 Mich App 197, 203-204; 506 NW2d 269 (1993).

In a vigorous dissenting opinion, Judge Hammond posited that if Judge Curtis had dropped dead, fallen ill, or become disabled during the course of the trial, no one would dispute that manifest necessity justified a mistrial. He deemed the situation resulting from Judge Curtis’ recusal analogous to " 'a breakdown in judicial machinery such as happens when the judge is stricken, or a juror has been discovered to be disqualified to sit . . . .’ ” Gori v United States, 367 US 364, 372; 81 S Ct 1523; 6 L Ed 2d 901 (1961) (Douglas, J., dissenting). Id. at 206.

We granted the prosecutor’s application for leave to appeal. 445 Mich 862 (1994).

B. PEOPLE v BELLEW

A retrial of defendant Bellew on a felony charge of receiving and concealing stolen property in excess of $100 ⁶ commenced on June 9, 1992.⁷ After two witnesses had testified, the trial was continued until June 23,1992.

During the interim, the prosecutor filed a motion to disqualify Judge Curtis, alleging that the defense attorney was "in some way associated in the practice of law” with Judge Curtis’ spouse. The motion focused on Judge Curtis’ ethical obligation to disclose this alleged relationship, and her failure to do so. Defense counsel answered by challenging the grounds for disqualification and requesting Judge Curtis to deny the motion or hold an evidentiary hearing. Counsel argued that "[w]hether that relationship would provide a basis under these circumstances for this Court to recuse itself on the vague generalization is unsubstantiated,” and that in light of the "substantial constitutional interests” involved, it was "an outrage” for the prosecution to file this motion. Stating that she had not engaged in any misconduct, Judge Curtis nonetheless recused herself to insure that both sides felt "their rights are protected and that impartiality is assured . . . .” She declined to address defendant’s request for an evidentiary hearing, choosing instead to refer the matter to Chief Judge Dalton Roberson.

The chief judge declared a mistrial, and then granted defendant’s motion to dismiss, holding that retrial was barred by the Double Jeopardy Clause._

A unanimous panel of the Court of Appeals upheld the chief judge’s decision, concluding that, while manifest necessity is an elusive concept, with considerable deference being accorded a trial court’s application of this concept, such deference could not operate to cloak the mere appearance of impropriety under the umbrella of manifest necessity.⁸ Unpublished opinion per curiam, issued January 7, 1994 (Docket No. 157434).

We granted the prosecutor’s application for leave to appeal, and ordered that this case be argued and submitted with People v Hicks.9

ii

Under both the Michigan¹⁰ and the federal¹¹ constitutions, an accused cannot be placed in jeopardy twice for the same offense.¹² Jeopardy attaches "once the defendant is put to trial before the trier of fact, whether [it] be a jury or a judge.” United States v Jorn, 400 US 470, 479; 91 S Ct 547; 27 L Ed 2d 543 (1971). In a bench trial, jeopardy attaches once the court begins to hear evidence. Serfass v United States, 420 US 377, 388; 95 S Ct 1055; 43 L Ed 2d 265 (1975).¹³

An oft-repeated statement of the reasons justifying this protection is set forth in Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), where the Court said:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is 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.

Despite the concern for repeated prosecutions, it is axiomatic that retrial is not automatically barred whenever circumstances compel the discharge of a factfinder before a verdict has been rendered.

One exception to the double jeopardy bar arises when a defendant moves for or consents to a mistrial. In United States v Dinitz, 424 US 600, 607; 96 S Ct 1075; 47 L Ed 2d 267 (1976), the Supreme Court held that

"where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. ”[¹⁴]

Consequently, retrial is not barred whenever a defendant has consented to a mistrial and the consent was not precipitated by prosecutorial or judicial goading.¹⁵

In addition to the consent exception, the Supreme Court has consistently maintained that retrial is permitted when the mistrial was occasioned by manifest necessity. The classic formulation of the test to be applied in determining whether retrial is permissible was articulated by Justice Story in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824):

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ....

The impetus behind this rule was the recognition that even personal security and freedom from governmental harassment should not be purchased at the high cost of barring all retrials following a mistrial declared without the defendant’s consent. Jorn, supra at 480. The Supreme Court has stated:

[A] defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments. [Wade v Hunter, 336 US 684, 689; 69 S Ct 834; 93 L Ed 974 (1949).]

Determining whether manifest necessity exists to justify the declaration of a mistrial requires a balancing of competing concerns: the defendant’s interest in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial. Recognizing the tension between these two concerns, the Supreme Court has held that the Perez doctrine commands trial judges to refrain from declaring a mistrial until "a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Jorn, supra at 485.¹⁶ Each case necessarily depends on its own particular facts. Illinois v Somerville, 410 US 458, 464; 93 S Ct 1066; 35 L Ed 2d 425 (1973).

Despite the command to decide each case on its own facts, the Supreme Court in Somerville concluded it was possible to distill some general rules from individual cases, premised on the "public justice” prong articulated in Perez. The Somerville Court had determined there was manifest necessity for a mistrial where under local law, a defect in the indictment neither could be cured by amendment nor waived by the defendant. The Court held that a trial judge properly exercises discretion to declare a mistrial when an impartial verdict cannot be obtained, or when a guilty verdict could be returned but would be reversed on appeal because of an obvious procedural error occurring during the trial. Any doubts concerning the existence of manifest necessity should be resolved in favor of the defendant. Downum v United States, 372 US 734, 738; 83 S Ct 1033; 10 L Ed 2d 100 (1963). With these considerations in mind, we turn to the cases at bar.

m

As a preliminary matter, we note that in both the cases at bar, Judge Curtis’ recusal occurred after several witnesses had testified. Jeopardy had thus attached.¹⁷ Consequently, retrial would be barred in either case in the absence of consent by the defendant or manifest necessity justifying the mistrial.

A

We cannot conclude that the defendant in either case consented to the mistrial. Both defendants adamantly opposed Judge Curtis’ decision to recuse herself and expressed their desire to continue with the chosen factfinder. Accordingly, consent cannot be derived from defendants’ actions surrounding Judge Curtis’ recusal.

Moreover, we decline to extract consent from defendant Hicks’ justifiable refusal to accept the alternatives proffered by Judge Boyle¹⁸ or from a motion by defendant Bellew for declaration of mistrial¹⁹ and to dismiss. We note that the hallmark of consent is the defendant’s retention of primary control over the course of his trial. Dinitz, supra at 609. The consent Dinitz envisioned manifests itself in a defendant’s decision to forgo taking his case " 'to the first jury and, perhaps, end the dispute then and there with an acquittal.’ ” Dinitz, supra at 608, quoting United States v Jorn, supra at 484.²⁰ A careful reading of the record, however, compels the conclusion that neither defendant opted to forgo a ruling by Judge Curtis on his guilt or innocence.²¹ In fact, both defendants opposed her recusal. In this sense, Judge Curtis’ recusal did not comport with the expressed desires of either defendant.²² Because Judge Curtis’ recusal extinguished defendants’ option to "go to the first jury,” we cannot conclude that either of the defendants consented to a mistrial.²³

Moreover, in Bellew, we believe it would be patently unfair to construe defendant’s motion for declaration of mistrial and for dismissal as consent to the mistrial, in light of defendant’s vigorous objection to Judge Curtis’ recusal. Defendant’s motion evidenced his belief that the functional equivalent of a mistrial had occurred upon Judge Curtis’ recusal. Although we reject this view today, we decline to transform defendant’s attempted clarification of the recusal into consent for a mistrial occasioned by an event outside of defendant’s control.

B

With respect to the manifest-necessity exception to double jeopardy, we heed the counsel provided by the United States Supreme Court in Somerville, supra, to decide each case on the basis of its own unique factual setting. We find instructive the analysis employed by the dissenting Court of Appeals judge in Hicks. Our focus must be on what actually occurred at the trial court level. Accordingly, we turn to a more detailed examination of the factual setting of each of these cases.

As noted above, despite opposition to recusal expressed by counsel for defendant Hicks, Judge Curtis recused herself after the assistant prosecutor discovered and called attention to the judge’s relationship with defendant’s brother. Judge Curtis expressed her reasoning:

All right. The problem with sitting as a judge, particularly in a waiver trial is that not only do I have to be concerned about whether I might be influenced in my rulings or in my findings by knowing someone in the defendant’s family but also whether or not it looks improper, the appearanee of impropriety and the Cannons [sic] refer to both of those situations as it applies to judges. I might be inñuenced by knowing his brother now that I know that I know his brother. I don’t really think that I would be, but I think just as important is the fact that it would not look good, that the appearance of impropriety could certainly result from my continuing as the trier of fact in this case. ... I don’t think that it is proper for the Court to continue in this case for the reasons that I have just stated and I don’t think it’s proper to dismiss the case either. [Emphasis added.]

I am not necessarily in agreement that [the assistant prosecutor] created the mistrial. . . .

I think the better way of resolving this is to recuse myself, disqualify myself from further proceedings in this matter and to refer the matter to the chief judge ... to determine whether or not this case should be dismissed or a mistrial declared because I suppose one might argue that my decision regarding a dismissal or mistrial might be influenced by my knowledge of the defendant’s brother, or my knowing the defendant’s brother.

Judge Curtis recused herself, and shortly thereafter the parties appeared before Judge Boyle, to whom the case was assigned.²⁴

After reviewing what had transpired in Judge Curtis’ court, Judge Boyle concluded that a mistrial had not been formally declared; he discerned that neither party desired a mistrial, and then he observed:

That leaves a number of options open. I could continue with that trial and use the transcript, or we could continue with the trial and have all the witnesses recalled before me, or I could declare a mistrial and the defendant could then decide as a matter of a new trial whether to have a jury or a bench trial in front of me. That option in my view goes exclusively to the defendant.

Defense counsel responded by stating:

It would be our position that the Court really doesn’t have the options of continuing the case from where it left off or recalling the witnesses. We believe that once Judge Curtis recused herself, that is a technical declaration of a mistrial.[²⁵]

Judge Boyle stated that "what [Judge Curtis] did was the functional granting of a mistrial whether or not she used the words . . . .” He entered a mistrial "as an official thing to clean up what happened there,” but he denied defendant’s motion to dismiss, concluding that Judge Curtis’ expressed discomfort with the situation justified her recusal:

I wouldn’t have done what she did, I’ve already made that perfectly clear. But I’m not gonna say that what she did was wrong . . . where a judge can certify on the record that the judge says there is a manifest necessity for me to excuse myself from continuing as a fact-finder in this case, an appellate tribunal ought to be pretty loathe to say that’s not manifest necessity if the judge thinks its manifest necessity.

And for that reason, I’m gonna deny the motion to dismiss on grounds of double jeopardy . . . ._

b. PEOPLE v BELLEW

In Bellew, after the trial had begun and witnesses had testified, Judge Curtis granted the assistant prosecutor’s motion for disqualification, which alleged that the defense attorney and the judge’s spouse were somehow associated in the practice of law.²⁶ Judge Curtis referred the matter to the chief judge without holding a hearing on the allegations.

The parties immediately appeared before the chief judge, where they agreed that Judge Curtis had not declared a mistrial.²⁷ The prosecutor focused on Judge Curtis’ statement that she was "simply refer[r]ing it to Chief Judge Roberson for assignment,”²⁸ and argued that a successor judge should continue the trial. The chief judge told the prosecutor to find case authority for substituting a judge midtrial, or he might send the case back to Judge Curtis.

When the parties appeared again before the chief judge, the prosecution agreed that a mistrial had to be granted, but asserted that retrial should be permitted, because Judge Curtis’ recusal was analogous to the death of a judge in the middle of the trial.

The chief judge granted the mistrial, and later granted defendant’s motion to dismiss, holding that retrial was barred by the Double Jeopardy Clause:

As in Little,[29] the defendant emphatically objected to the declaration of a mistrial when the trial court failed to make explicit findings as to manifest necessity. Although the trial court found an appearance of impropriety, manifest necessity to justify a mistrial has not been demonstrated. The trial judge clearly indicated that she would be able to remain impartial.[³⁰]

In each of these cases, the record establishes that Judge Curtis did not formally declare a mistrial. She merely recused herself.

In each case, the defendant contends that Judge Curtis’ action in recusing herself was functionally equivalent to declaring a mistrial. Acceptance of this interpretation would render the failure to formally declare a mistrial virtually meaningless; the applicable analysis would be similar to that employed had Judge Curtis actually declared the mistrial.

In contrast, the prosecutors in both cases urge us to treat Judge Curtis’ midtrial recusal and refusal to further participate as an illness or other disability sustained in the middle of the trial. This midtrial disability constituted manifest necessity justifying the mistrial. Put another way, the recusal in the middle of trial caused the mistrial; it was not the mistrial itself.

We find the prosecutors’ arguments more persuasive on this issue. A mistrial is defined as a "[t]rial which has been terminated prior to its normal conclusion.”³¹ Although Judge Boyle ultimately concluded in Hicks that Judge Curtis’ actions were the functional equivalent of a mistrial, he reached this conclusion only after defendant Hicks had rejected the proffered alternatives to aborting the trial:

Unless the defendant consented to go forward in front of another judge with the same continued proceeding, either using the transcript, as I’ve already made perfectly clear on the record, if the defendant opted for that, I’d do that even over the prosecution’s objection and I would do that because I think the defendant does have a right to that alternative.

But the defendant doesn’t wish to do that and I don’t think the defendant can be forced to do that.

Judge Boyle’s exploration of alternatives supports our conclusion that Judge Curtis’ actions should not be equated with a mistrial.³² While the options were admittedly limited, the trial should not have been terminated until such options had been considered. Stated another way, Judge Curtis’ recusal operated neither as an automatic termination of the proceedings nor a necessary foreclosure of the continuation of such proceedings before another judge. On this basis, we cannot conclude that Judge Curtis’ recusal, without more, necessarily terminated the trial before its natural conclusion.

Consequently, we adopt the argument advanced by the prosecutors, and treat Judge Curtis’ mid-trial recusal and refusal to further participate as a "disability” incurred by the factfinder during the trial. Support for this characterization can be found in the decision of the United States Court of Appeals for the Fourth Circuit in United States v Sartori, 730 F2d 973, 976 (CA 4, 1984),³³ that a trial judge’s midtrial recusal was encompassed within the term "other disability” contained in Rule 25(a) of the Federal Rules of Criminal Procedure.³⁴ While the dispositive issue in Sartori was the trial court’s failure to consider reasonable alternatives to a mistrial, alternatives existed once the court recognized that a midtrial recusal was analogous to a disability.³⁵

We believe Judge Curtis’ refusal to further participate presented a situation not unlike that created by the midtrial disability of a trial judge. We are cognizant of the general rule, reiterated in Sartori, that trial judges must consider reasonable alternatives before declaring a mistrial. We note, however, that in contrast to the district judge in Sartori, Judge Curtis never reached the moment when reasonable alternatives were to be explored. For purposes of this trial, she became "disabled” when she recused herself, yet at this point, she had not declared a mistrial. We conclude, therefore, that our focus cannot rest solely upon Judge Curtis; rather, it must extend to the situations presented to and the actions of the successor judges.³⁶

3

Recognizing the paucity of options available, Judge Boyle offered to preside over the completion of defendant’s trial, or to declare a mistrial. Defendant justifiably withheld his consent to the former, and declined to request the latter.

While the former option was designed to protect defendant’s interest in terminating the proceedings, once begun, it could not restore his "valued right to have his trial completed by a particular tribunal,” lost upon Judge Curtis’ recusal. Wade, supra at 689. Once defendant rejected the "lesser included” protection of finality, Judge Boyle had no choice but to declare a mistrial. Under these circumstances, we conclude in accordance with Perez that retrial will not contravene the protections afforded by the Double Jeopardy Clause.³⁷

b. PEOPLE v BELLEW

In contrast to Judge Boyle’s performance in Hicks, the chief judge in Bellew did not engage in a "scrupulous exercise of discretion.” Although his actions in reserving a decision on whether a mistrial should be granted were laudable, his failure to consider alternatives precludes a determination that manifest necessity justified his declaration of a mistrial in Bellew, unless it can be concluded that no reasonable alternative existed.

While it is arguable that no reasonable alternative existed, and it is perhaps probable that defendant Bellew would have refused any alternative offered, such speculation cannot support a conclusion that manifest necessity existed. At a minimum, the chief judge should have expressly raised the possibility of completing the trial before a different judge. Even after losing his "particular tribunal,” defendant may have opted to exercise his "lesser included” interest in finality, and chosen to continue the trial before another factfinder, preserving any recorded testimony that he perceived to be favorable.³⁸

The chief judge did allude to the possibility of appealing Judge Curtis’ recusal:

Hold it, Your remedy is in the Court of Appeals, not here, because I have no authority to rule on. her motion to disqualify herself once she grants it.

We are not suggesting such an appeal should have been taken; we are merely noting another option that the chief judge failed to adequately explore.

We will not attempt to discern whether defendant would have accepted any of these options. It is sufficient for our purposes that options existed that remained unexplored. People v Benton, 402 Mich 47; 260 NW2d 77 (1977).³⁹

Moreover, we note that allowing a retrial of defendant Bellew would subject him to a third trial on the charge of receiving and concealing stolen property in excess of $100. Finding this to be a close case, and being cognizant of the command to resolve doubts in favor of the defendant, Downum, supra, we decline to hold that manifest necessity existed to justify the mistrial in Bellew.40

iv

Accordingly, we conclude that Judge Curtis’ recusal and refusal to continue in both Hicks and Bellew is analogous to a midtrial disability suffered by the presiding judge, and that the determination whether manifest necessity existed to justify a mistrial necessarily depends on whether a "scrupulous exercise of discretion” by the successor judge would have revealed reasonable alternatives to declaring a mistrial. We conclude that only Judge Boyle properly considered available alternatives to declaring a mistrial, and that in Hicks, the defendant’s justified refusal of the proffered alternatives constituted manifest necessity for the mistrial. Consequently, defendant Hicks may be retried consistent with the protections afforded by the Double Jeopardy Clause, but retrial of defendant Bellew is barred by the Double Jeopardy Clause.

Accordingly, we would reverse the decision of the Court of Appeals in Hicks and would remand for retrial, and we would affirm the decision of the Court of Appeals in Bellew.

Mallett, J., concurred with Griffin, J. Brickley, J., concurred only in the result.

1 201 Mich App 197; 506 NW2d 269 (1993).

2 Unpublished opinion of the Court of Appeals, issued January 7, 1994 (Docket No. 157434).

3 MCL 750.83; MSA 28.278.

4 MCL 750.227b; MSA 28.424(2).

5 Judge Curtis had telephoned Judge Evans, the acting chief judge, and informed him of her recusal. Judge Evans assigned the case to Judge Boyle, the alternate for Judge Curtis.

6 MCL 750.535; MSA 28.803.

7 In his initial trial before the same Judge Curtis in September 1991, defendant had been convicted of one count of receiving and concealing stolen property in excess of $100, a felony, and four counts of concealing or misrepresenting the identity of a motor vehicle without intent to mislead, a misdemeanor. Following his conviction, defendant retained new counsel and moved for a new trial, alleging ineffective assistance of counsel. Judge Curtis granted the motion with respect to the felony conviction. Actions that transpired at the retrial are the subject of this appeal.

8 The Court distinguished between Judge Roberson’s granting of the mistrial and his dismissal of the charges on double jeopardy grounds, holding that the prosecutor had appealed only the latter, not the former. Consequently, the Court of Appeals did not address whether Judge Roberson should have or could have sent the case back to Judge Curtis.

9 445 Mich 862 (1994).

10 Const 1963, art 1, § 15.

11 US Const, Am V, applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).

12 It has often been said that the double jeopardy guarantee consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

13 In a jury trial, jeopardy attaches once the jury is impaneled and sworn. Id. at 388.

14 In United States v Dinitz, supra, the defendant’s attorney was expelled for misconduct, and the trial judge offered three options to the defendant: proceed with co-counsel, take a continuance to appeal the expulsion of his attorney of choice, or have a mistrial declared. The defendant opted for the mistrial, then later argued that retrial was barred on double jeopardy grounds. The Supreme Court disagreed, holding that defendant had consented to the mistrial.

15 See Oregon v Kennedy, 456 US 667, 676; 102 S Ct 2083; 72 L Ed 2d 416 (1982) (the Double Jeopardy Clause bars retrial when the prosecutor intended to provoke the defendant into requesting a mistrial, or when the prosecutor intends "to subvert the protections afforded by the Double Jeopardy Clause”); People v Dawson, 431 Mich 234, 253; 427 NW2d 886 (1988) ("Where a defendant’s motion for mistrial is prompted by intentional prosecutorial conduct, however, the defendant may not, by moving for a mistrial, have waived double jeopardy protection”).

16 In United States v Jorn, the defendant was charged with wilfully assisting in the preparation of fraudulent tax returns.

At trial, the prosecution attempted to elicit testimony from a taxpayer who had allegedly aided the defendant in the preparation of his return. Defense counsel suggested that the witness be informed of his constitutional rights, and the judge complied. Despite the witness’ willingness to testify, the judge prohibited such testimony before the witness had consulted an attorney, and then aborted the trial to enable the witness to obtain such consultation.

On a pretrial motion before retrial, the judge dismissed the information on the basis of former jeopardy. In a plurality opinion, the Supreme Court upheld this dismissal, concluding that manifest necessity did not exist to justify the mistrial, since a continuance would have enabled the witness to seek legal counsel.

17 Serfass v United States, supra at 388 (in a bench trial, jeopardy attaches once the court begins to hear evidence).

18 The alternatives included a continuation of the trial before Judge Boyle, with Judge Boyle either reading the earlier transcripts, or recalling the witnesses, plus the option of having a mistrial declared.

19 Defendant’s motion, presented to Chief Judge Roberson, read in part as follows:

18. Defendant respectfully maintains that your honor is without jurisdiction in this matter, there having not been a mistrial declared.

19. Assuming arguendo, the absence of a jurisdictional issue, this matter should be dismissed on double jeopardy or related grounds.

20. Actually, defendant requests that the case be sent back to Judge Curtis for the declaration of a mistrial and then reassigned to another judge or to the Chief Judge for sentencing.

21. The record in this matter does not support the grant of the prosecutor’s motion for disqualification. In fact, it barely supports the request for a hearing into the matter, which is what the prosecutor should have sought.

22. In granting the prosecutor’s motion, the judge effectively declared a mistrial. Therefore, Count 1 should be dismissed and retrial barred because there was no manifest necessity for the mistrial.

Wherefore, for the foregoing reasons, defendant requests that a mistrial be declared on this count and that retrial [be] barred on double jeopardy grounds.

20 The Dinitz Court observed:

Even when judicial or prosecutorial error prejudices a defendant’s prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal.” United States v Jorn, supra at 484. Our prior decisions recognize the defendant’s right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. [Id. at 608. Emphasis added.]

21 We think it pertinent to note that during oral argument before this Court, even the prosecutor disavowed any reliance on consent.

22 Unlike other trial errors, a judge’s decision sua sponte to recuse herself after jeopardy has attached in a bench trial deprives a defendant of the option to obtain a verdict from the first factfinder. Despite the dissent’s characterization of this sentence as "constitutionally irrelevant,” we believe it becomes irrelevant only when viewed within the context of the dissent’s erroneous assumption that the protections of the Double Jeopardy Clause do not encompass defendant’s right to obtain a verdict from the first factfinder. While such a right is not absolute, it is entitled to constitutional protection under Wade, supra at 689, and Arizona v Washington, 434 US 497, 509; 98 S Ct 824; 54 L Ed 2d 717 (1978).

Without citing any authority, the dissent asserts that "[i]t appears that a defendant’s valued right to a particular tribunal is merely an incident of the defendant’s more generalized interest in being able to complete the trial itself.” Post at 863. As discussed above, however, this conflicts with language in Wade, supra at 689, Washington, supra at 509, and the plurality opinion in Jorn.

23 We note, however! that a different result would obtain, at least with respect to defendant Hicks, were we to conclude that defendant’s protected double jeopardy interest encompassed only the right to a completed trial, and not a completed trial before a particular tribunal. See Westen & Drubel, Toward a general theory of double jeopardy, 1978 Sup Ct R 81, 84.

Westen and Drubel have suggested that the Double Jeopardy Clause serves an interest in finality that is not inextricably bound to any particular tribunal. More specifically, the authors assert:

A defendant has a valued right to have his trial completed by a particular tribunal, not because he has a constitutional interest in the identity of any particular tribunal, but because he has an interest in being able "to conclude his confrontation with society” once it has begun .... To that extent, the defendant’s interest in retaining the particular tribunal with which he began is merely an incident of his primary interest in being able to complete the trial itself. [Id. at 90.]

The authors’ theory, however, cannot be reconciled with the language in the plurality opinion in Jorn, supra at 486:

[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate. [Emphasis added.]

Several leading commentators have also recognized that the defendant’s interest lies in the completion of the trial before a particular tribunal. See LaFave & Israel, Criminal Procedure (2d ed), p 1057:

[T]he Court recognized as an aspect of jeopardy bar the protection of "the defendant’s 'valued right’ to have his trial completed by a particular tribunal.” Implicit in this protection is the recognition not only that there must be a barrier to prosecution manipulation of a trial termination to give it another chance, but also that the termination of the trial without verdict may hurt the defendant even without such manipulation. Every jury has its own character and the jury lost may be more favorably disposed to the defendant than the next jury. [Citations omitted.]

Consequently, we do not proceed on the assumption that a defendant’s "valued right to have his trial completed by a particular tribunal” is merely incidental to his primary interest in finality. For this reason, defendant Hicks’ rejection of Judge Boyle’s offer to complete the trial cannot constitute consent to the mistrial.

24 See n 5.

25 Defense counsel continued:

And we would say that it follows the rationale of People versus Little [180 Mich App 19; 446 NW2d 566 (1989)] and in fact that ... we elected to have the case heard before her and in fact it was heard before her, and that any action that she took to recuse herself, although she did not specifically state that she declared a mistrial, in fact created a mistrial.

26 The motion alleged that the defense attorney and the judge’s spouse listed the same address, including identical suite numbers, and that a telephone call to Judge Curtis’ spouse’s office seeking defense counsel received the reply that defense counsel was not in, but would return the call.

27 This was clear from a question that had been put to Judge Curtis by defense counsel:

Mr. Pookrum: Your Honor, may we, may I understand what the actual status is. Is the Court in effect granting a mistrial?

The Court: No, I am simply refering [sic] it to Chief Judge Roberson for assignment.

28 Judge Curtis stated that the chief judge would "do whatever, hear any motions, or send it to the appropriate judge for hearing of motions. I am simply granting the motion filed by the People.”

29 People v Little, n 25 supra.

30 This is a somewhat inaccurate characterization of the record. Defendant strenuously objected to Judge Curtis’ recusal, not her declaration of a mistrial, because Judge Curtis never declared a mistrial.

31 Black’s Law Dictionary (6th ed), p 1002.

32 The chief judge’s failure to articulate available options in Bellew does not mandate the conclusion that Judge Curtis’ recusal was the functional equivalent of a mistrial. Rather, the failure to consider alternatives is relevant to the question whether the ultimately declared mistrial was justified by manifest, necessity.

33 In Sartori, the defendant was a medical doctor who practiced "holistic” medicine. Two of defendant’s deceased patients were cancer patients, and the trial judge was an active member of the American Cancer Society. After defense counsel informed the judge that it would not agree to a substitution of judges for sentencing purposes were the defendant to be convicted, the government suggested that judges be substituted under Rule 25(a), which permits substitution when the trial judge is unable to proceed because of any other disability.

The trial judge rejected this proposal on the basis of a Fourth Circuit decision that he erroneously read as condemning this practice, and then declared a mistrial over the defendant’s objection on the ground that the ends of public justice would be defeated by continuing the trial.

The Fourth Circuit held that a midtrial recusal constitutes an "other disability” under Rule 25(a). Substitution of trial judges was thus permitted under Rule 25(a).

Despite its determination that a midtrial recusal was an "other disability” for purposes of Rule 25(a), the Fourth Circuit concluded that the trial judge’s failure to consider this option precluded a conclusion that manifest necessity existed to justify retrial.

34 Rule 25(a) of the Federal Rules of Criminal Procedure provides:

If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the trial.

35 Although Sartori is distinguishable in that it involved a federal jury trial, this difference does not undermine the conclusion that a recusal in a bench trial can be deemed a disability. Rather, this distinction is relevant only in determining whether substitution of judges was permissible. More specifically, while substitution of judges was deemed permissible in Sartori, it would have been precluded in Hicks absent consent by both the defendant and the prosecutor. See MCR 6.440(B), which states:

During Bench Trial. If a judge becomes disabled during a trial without a jury, another judge may be substituted for the disabled judge, but only if

(1) both parties consent in writing to the substitution, and

(2) the judge certifies having become familiar with the record of the trial, including the testimony previously given.

36 While Sartori enables us to analogize a recusal in the middle of trial to a disability, it does not allow us to dispense with the consideration of alternatives. Judge Curtis’ recusal without declaring a mistrial merely allows us to focus on her successor judge in determining whether reasonable alternatives to a mistrial were considered.

37 It is illuminating to view the proceedings through the "jaundiced eyes of a general public,” whose distrust of public officials and dislike for "legal technicalities” that are the cornerstone of our constitutional liberties cannot be disputed. As aptly characterized by the dissent in the Court of Appeals:

This case runs the danger of looking to the public as follows: The judge has a close relationship with a brother of the defendant. She says nothing about that, perhaps hoping that no one will find out. The prosecutor reminds her of this relationship, therefore telling her that the cat is out of the bag. It now is apparent that there will be problems because of the known relationship between the judge and the defendant’s family. The prosecution does not move for a mistrial, to disqualify the judge, or for anything else. The judge refused to participate further and, if the double jeopardy claim is upheld the defendant gets off absolutely free from a life offense (and from a charge of possession of a firearm during the commission of a felony) because the trial judge, by some legal mumbo jumbo, made it forever impossible for the prosecution to continue the case against the defendant to judgment and sentence. If that doesn’t evoke the "appearance of impropriety,” I do not know what does. [201 Mich App 208 (J. T. Hammond, J., dissenting).]

Like the dissent in the Court of Appeals, we neither suggest nor believe that this is or even might be true. Undoubtedly, there will be some who will believe Judge Curtis might have conspired to obstruct justice. She alone can deny this. Our paramount concern, however, is the shadow cast on the integrity of the entire judiciary in this state.

38 See LaFave & Israel, n 23 supra, p 1057 ("if the Government may reprosecute, it gains an advantage from what it learns at the first trial about the strengths of the defense case and the weakness of its own”); see also People v Benton, 402 Mich 47, 62; 260 NW2d 77 (1977) (mistrial "relieved the prosecutor of the embarrassment of having his own witness exculpate the defendant”).

39 See United States v Cameron, 953 F2d 240, 243 (CA 6, 1992) ("While the Constitution does not require a trial judge to conduct a hearing on the record, the record must support the finding that manifest necessity justified the declaration of a mistrial.” Citations omitted.).

40 Moreover, we note that the prosecutor moved for Judge Curtis’ disqualification in Bellew, and consequently must bear some responsibility for her decision to recuse herself in the middle of trial.