Guidance issued by The Crown Prosecution Services in England and Wales limits a second retrial to cases involving exceptional circumstances. That’s a policy the U.S. Department of Justice should consider embracing, says Holland & Knight Partner Steven Gordon in a piece he’s written for Law360.
Gordon sees little reason for a case, U.S. v. Penn, alleging price fixing among chicken suppliers, to go before a jury for a third time. Two previous trials, the first in December and the second in April, resulted in juries unable to reach a verdict on the 10 defendants. After the second mistrial, DOJ prosecutors dropped charges against half of the defendants and announced plans to proceed with a third trial for the remaining five.
“Generally, cases that are tried a third time involve the most serious offenses, such as murder,” says Gordon. “The offense at issue here is a nonviolent, regulatory offense.”
Trials as harassment
Although there are no technical limits on trials, a 1959 case, Bartkus v. Illinois, suggests the U.S. Supreme Court envisions a theoretical limit to them, as a due process violation, if they start to feel like harassment.
"'At some point the cruelty of harassment by multiple prosecutions by a state would offend due process,’" Gordon says, quoting the court’s decision in the case.
For the parties, including the court system itself, multiple trials are costly. “These costs include taxpayer dollars, the court's time, jurors' time and stress on victims, witnesses and their families,” he says. “Multiple trials also place stress on defendants who must run the same gauntlet repeatedly with their liberty at stake. And the financial burden on defendants who are paying for their own defense can be crushing.”
In the price-fixing case, Judge Philip Brimmer of the U.S. District Court for the District of Colorado was concerned enough about whether a third trial was warranted that he asked DOJ’s antitrust chief Jonathan Kanter to appear before him in person to explain his rationale for going forward.
“The DOJ remained adamant about proceeding and so the third trial is now scheduled for June,” Gordon says.
The price-fixing case is probably the kind of case that shouldn’t be going before a jury for a third time, Gordon says.
If the DOJ decides to look at the issue of retrials, which remain rare – between 2% and 5.5% of trials by some estimates – The Crown Prosecution Services in England and Wales provides a model to follow, says Gordon, who recommends language be added to the federal rules of criminal procedure.
In what would be Federal Rule of Criminal Procedure 31(b)(3), he says, add, "Another retrial on any count on which the jury again could not agree may proceed if the court finds that it is in the interest of justice given the gravity of the offense and the strength of the evidence."
That would keep the price-fixing case from moving forward for a third time – an unfortunate spectacle, he says, that doesn’t warrant it.