Judicial misconduct can be a bar to retrial under double jeopardy ban, top state court rules
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New Mexico’s constitutional ban on double jeopardy may bar retrial of a defendant because of a judge’s conduct at trial, the state’s top court ruled earlier this month.
The court ruled for Henry Hildreth Jr., who had been convicted of felony aggravated battery against a family member with great bodily harm. Hildreth’s appointed lawyer, Steven Seeger, had asked for a continuance multiple times after receiving a CD with audio recordings of witness statements only five days before the March 2017 trial.
The prosecution said it turned over the CD on the same day that it received it. It argued that, if the judge decided to apply a sanction, he should continue the trial rather than bar the state’s witnesses.
At a pretrial conference that happened the day after Seeger received the CD, he argued that Hildreth would be denied his right to effective assistance of counsel if the trial proceeded without adequate time to prepare.
“The judge denied the motion for continuance without hearing any argument,” the New Mexico Supreme Court said. “From that point forward, Seeger remained determined to get a continuance, and the judge remained committed to proceed with trial as scheduled. Their intransigence forms the root of the issue in this case.”
Seeger told the judge, Judge Robert A. Aragon, that he would be present for trial but would not participate. The judge replied that if that was true, the defendant would have excellent grounds for appeal based on incompetent counsel.
At a motion hearing on the first day of trial, Seeger asked Aragon to bar prosecutors from calling witnesses as a sanction for turning over the CD so late. The prosecutor told the judge that the CD was “nothing that the state would have presented today.” The judge denied sanctions, and the trial started.
Seeger stayed true to his word and refused to participate in the trial, although he made three mistrial motions. In a motion filed after his lunch hour on the first day of trial, Seeger said he reviewed the CD and discovered that it contained statements from two witnesses who testified for the prosecution that morning, as well as a statement by the defendant.
The judge allowed the trial to proceed.
The New Mexico Court of Appeals reversed the conviction because Hildreth was denied his right to competent representation, but it allowed a retrial. The New Mexico Supreme Court ruled that the state could not retry Hildreth.
The court cited State v. Breit, a 1996 case in which the New Mexico Supreme Court ruled that a retrial is barred following official misconduct when a three-prong test is satisfied.
First, the misconduct must be so prejudicial that it can’t be cured short of a mistrial or a motion for a new trial. Second, the official must know that the conduct is improper and prejudicial. Third, the official must intend to provoke a mistrial or act in willful disregard of the resulting mistrial, retrial or reversal.
Although the Breit case concerned prosecutorial misconduct, its reference to official misconduct “is certainly broad enough to include judicial conduct,” the New Mexico Supreme Court said. “This was no accident.”
In Hildreth’s case, the judge’s denial of a continuance satisfied the Breit test, the state supreme court concluded.
“We know of no calculus by which to justify the judge’s refusal to grant a continuance, mistrial or sanctions—let alone allow the trial to proceed to its end,” the state supreme court said.
New Mexico appellate defender Caitlin Smith told Law.com that the decision “recognized that judicial misconduct can be just as damaging to defendants as prosecutorial misconduct.” She said her office is aware of only two other cases—in Delaware and Indiana—in which judicial conduct was a bar to retrial.
The case is State v. Hildreth.