STATE v. RICHARD ANDERSON; STATE v. JANICE ANDERSON; SC 18350

Judicial District of New London

     Double Jeopardy; Whether Reprosecution of the Defendants is Barred by the Double Jeopardy Clause Because Declaration of a Mistrial in the First Prosecution was not Based on Manifest Necessity.  The defendants, Richard Anderson and Janice Anderson, were jointly tried on two separate informations charging them with larceny and conspiracy to commit larceny.  The trial began on June 12, 2007.  On June 24, 2007, the trial court, Schimelman, J., continued the case after being informed that the prosecutor, John Malone, had become seriously ill and had to be hospitalized.  On July 5, 2007, Judge Schimelman spoke with Malone on the telephone and learned that his condition was going to necessitate further hospitalization, followed by a lengthy convalescence.   Later that day, Judge Schimelman held a hearing to discuss potential restart dates for the trial.  At that hearing, the state was represented  by supervisory assistant state's attorney John Whalen.  Judge Schimelman, based on Whalen's representations and his own observations, found that another state's attorney would not be able to replace Malone due to the complexity of the case.  The court also noted that the jurors had expressed concerns regarding the length of the trial even before Malone was hospitalized.  Considering these factors, Judge Schimelman, over the defendants' objection, declared a mistrial in compliance with the manifest necessity doctrine originally articulated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).  Subsequently, the defendants moved to dismiss the informations, claiming that the declaration of a mistrial by Judge Schimelman had not been based on manifest necessity and, therefore, further prosecution was barred by the double jeopardy clauses of the federal and state constitutions.  The defendants argued that, before declaring the mistrial, Judge Schimelman should have polled the jury as to their potential availability to reconvene at a later date.  The trial court, Handy, J., disagreed, concluding that polling the jury would have been futile because there was no basis to estimate when Malone would be able to return, if at all.  Next, the defendants claimed that Judge Schimelman improperly accepted the state's "simple representation" that another state's attorney would not be able to replace Malone.  The court rejected that argument as well, stating that Judge Schimelman was entitled to credit the state's assertions about the infeasibility of replacing Malone, especially in light of his own knowledge of the complexity of the case.   Finally, the court rejected the defendants' claim that the state should have "back up counsel" for complex cases, noting that there was no support for such a proposition, and that it was not administratively feasible for the state to do so.  Accordingly, the trial court denied the defendants' motion to dismiss, ruling that the declaration of a mistrial by Judge Schimelman had been based on manifest necessity and that further prosecution was not barred by double jeopardy.  In this appeal, the Supreme Court will review the trial court's ruling.