H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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DA Stopped From Retrying Defendant After Mistrial Granted – The Protection of Double Jeopardy

In a recent decision by the Colorado Court of Appeals, the DA was prevented from retrying a case when he sought and was granted a mistrial …

Here are the facts:

The defendant was charged in a Colorado Domestic Violence case with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace. The trial court declared a mistrial during cross-examination of an alleged victim in the misdemeanor assault case against the Defendant who then filed an immediate appeal stating that a retrial would violate his rights against double jeopardy.

The trial court denied the moton to dismiss concluded that there was manifest necessity for the mistrial because the cross-examination question improperly provoked the jury into believing it was determining issues of immigration and domestic relations and because the risk of unfair prejudice to the prosecution could not be corrected just by instructing the jury to ignore the question.

The Colorado Supreme Court found that the defendant not only properly raised his double jeopardy challenge to retrial but that the defendant had a right, possibly of constitutional magnitude to inquire into the wife’s understanding of the immigration consequences of a conviction.

H. Michael’s Take

In this case the Defendant’s theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple’s infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected – stating “we’re here on a criminal trial not on the divorce case” – but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel “a little bit of latitude” in this area, the court did urge counsel to “cut to the chase.”

Further questioning established that the wife had taken the couple’s son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he’ll be deported? The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.

Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counseltold the court that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”

When the DA moved for a mistrial, the defendant objected — the mistrial was granted and the defendant immediatley appealed…. and WON.

The importance of this case is that the defendant should be allowed using cross examination to expose the possible motivations for a report odf domestic violence to the authorities, When the judge shut that down and then granted a mistrial — he was dead wrong. The Colorado Supreme Court went even further in it’s analysis:

Criminal defendants have a right, of constitutional magnitude, to engage in “‘otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.'”