Mistrials
A lawyer's as well as a judge's worst nightmare often occurs
when a case has to be retried. The reason for this is simple -
nobody likes having to do the same job twice. Unfortunately,
mistrials are a necessary evil at times. The most often occurrence
is when a jury cannot reach a decision in a case. They also are
caused when a major mistake is made during the trial.
A mistrial was recently declared in a high profile capital
murder case in Bullitt County due to a police detective
testifying to the jury that the defendant failed a polygraph test.
The testimony came at the end of the trial and was depicted as
"blatant and deliberate" by the defendant's lawyers. It was
alleged that because the case was going badly for the
prosecution, the detective intentionally caused a mistrial so
that the case would not be lost. Polygraph evidence is not
admissible at trial.
Normally, if a mistake is made and the defendant asks for a
mistrial, the case is tried again. Double jeopardy does not
apply. The double jeopardy clause of the Fifth Amendment of
the United States Constitution protects a criminal defendant
from repeated prosecutions for the same offense. The general
rule however is that double jeopardy does not bar reprosecution
where the defendant asks for the mistrial.
In the Bullitt County case, the defendant was charged with
beating and strangling his 17 year old neighbor, Jessica. After
the mistrial was declared, at least six jurors stated that they
would have acquitted the defendant had the case continued.
Others indicated they were leaning toward acquittal.
One juror said the detective, an employee of the sheriff's
office, made his statement on purpose to cause the mistrial.
She said it was apparent there was not going to be a conviction
based on the way the trial was going, as the evidence just did
not connect the defendant to the murder. "The pieces just don't
fit," she said.
Whether there will be a retrial of the case is up to the trial
judge. The real issue though will be whether the detective's
improper testimony was meant to goad the defendant into
requesting a mistrial. If it did, then double jeopardy may well
prevent a second trial from occurring and the defendant will
walk free.
The United States Supreme Court dealt with this issue in a
1982 case. It stated that conduct made in "bad faith" by the
prosecution or its representatives who provoke a mistrial
should not be permitted. This would include conduct that
might be viewed as harassment or overreaching. Courts must
look to the intention of the one who causes the mistrial to
defermine bad faith.
It must be remembered that once a defendant is tried and
acquitted, he may not be prosecuted for the same offense. Thus
you have the case out of Louisville where a man was found
guilty of murdering his girlfriend, but later admitted to the
crime when new evidence was discovered. He was later
prosecuted and convicted of perjury, but he could not be
retried on the murder charge once a jury had acquitted him.
The double jeopardy clause represents a constitutional
policy of finality for a defendant's benefit in criminal
proceedings. Thus charges are sometimes delayed until the
prosecution determines it has enough evidence. In most cases,
it only has one bite of the apple. If that is a bad bite, it still has
to swallow the results.
COPYRIGHT @2002 WILLIAM B. MAINS
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in a remote pasture when suddenly a
brand new Jeep Cherokee advanced
out of a dust cloud towards him.
The driver, a young man in a Brioni
suit, Gucci shoes, Ray Ban sunglasses
and a YSL tie, leaned out of the
window and exchanged some words
with our shepherd.
"IfI can tell you exactly how many
sheep you have in your flock, will
you give me one?"
The shepherd looks at the yuppie,
then at his peacefully grazing flock
and calmly answers "sure!"
The yuppie parks the car, whips
out his notebook, connects it to a
eellphone, surfs to a NASA page on
the Internet where he ealts up a GP S
satellite navigation system, scans the
area, opens up a database and some
60 Excel spreadsheets with complex
formulas.
Finally he prints out a 150-page
report on his hi-tech miniaturized
printer, turns round to our shepherd
and says: "you have here exactly 1,586
sheep!"
"This is correct. As agreed, you can
take one of the sheep," says the shep-
herd.
He watches the young man make a
selection and bundle it in his Chero-
kee. Then he says: "If I can tell you
exactly what your business is, will
you give me my sheep back?"
man.
"You are a consultant," says the
shepherd.
"This is correct," says the yuppie,
"how did you guess that?"
"Easy" answers the shepherd.
"You turn up here although no-
body called you. You want to be
compensated for the answer to a ques-
tion I already knew the solution to;
and you know absolutely nothing
about my business because you took
my dog."
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A 92 year-old man went to the
doctor to get a physical. A few days
later the doctor saw the man walking
down the street with a gorgeous young
lady on his arm.
At his follow up visit the doctor
talked to the man and said, "You're
really doing great, aren't you?"
The man replied, "Just doing what
and be cheerful'."
The Doctor said, "I didn't say that.
I said you got a heart murmur. Be
careful."
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I guess there's a lot to be said for
senility, particularly if you and your
spouse both share the affliction.
An 80 year-old couple was having
problems remembering things, so they
decided to go to their doctor to get
checked out to make sure nothing was
wrong with them.
When they arrived at the doctors,
they explained to the doctor about the
problems they were having with their
memory. After checking the couple
out, the doctor told them that they
were physically okay but might want
to start writing things down and make
notes to help them remember things.
The couple thanked the doctor and
left.
Later that night while watching TV,
the man got up from his chair and his
wife asked, "Where are you going?"
He replied, "To the kitchen."
She asked, "Will you get me a bowl
of ice cream?" .
He replied, "Sure."
She then asked him, "Don't you
think you should write it down so you
can remember it?"
He said, "No, I can remember that."
She then said, "Well I would also
berries."
She replied,' Well I
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,. From the files of "RUSS METZ", 191
Publk', F uffing May Bec )me Taboo
When all is said and done in Washingtonand that can be both
expensive and bofingthey will finally pin a warning label in
cigarette packages, cautioning people that, if they persist in puffing
on those filthy weeds, it could damage their health. All of which
seems pretty stupid to me.
Obviously, Washington bureaucrats feel that the American public
does not have enough sense to think for itself. If the Great White
Fathers feel they must do this for our protection, then they haven't
even scratched the surface. Safety pins ought to be labeled, too, with
warnings that you could get stuck by them.
It seems ironic that cigarettes must fly the skull-and-crossbones
pennant, while booze bottles mention nothing about pink elephants,
heeby-jeebies, snakes, shakes, or ring-tailed terriers, which may be
contacted from its use. And what could be more damaging to your
health than wedding rings?
Some movie-makers have announced a ban on cigarette smoking
in their scenes, a cigarette being the most a woman has on. But then
we must not sensationalize the movies with such lewd tricks as
cigarette smoking.
Each time I see a television beer commercial, I hope the announcer
will lose his will power and gulp down the stein of foamy hops. But
then that would be breaking the Boob Tube commandment, "Thou
Shalt Not Swill," which forbids beer drinking in teevee ads. And this,
too, seems pretty silly. Any idiot with one eye and half sense, knows
you don't pour out a mug of beer to water your geraniums.
Next thing to come, will be a non-smoking rule for cigarette
advertising on television. No longer will the announcer take a big
drag, smack his lips and tell you what a delightful experience he had.
He'll just stand there holding the thing, telling you it won't flake off
on your shirt, cause fallen arches, or clog the air conditioner. It may
not take much sense, but it will please our fairy godfathers in
Washington.
Many years before the Surgeon General's health warning, an old-
timer warned me about tobacco. "Tobacco," he said, "can be mighty
dangerous...if'n you don't watch where you spit!"
A recent Better Business Bureau (BBB) bulletin carries a warning
against a company which has been advertising a tablet to help people
quit smoking. There is no evidce, says the BBB, that the tablet helps
do anything of the kind.
It seems to us that the BBB is missing the point here. People who
send offmoney for such things are not buying an anti-smoking remedy;
they are buying a dream.
There is the old saw about how to lose ten ugly pounds----cut offyour
head. Along this line, an uncle of mine decided, back in the old days,
to give up the filthy weed. His tobacco juice was shattering my aunt's
pansy bed and he was continually dropping hot ashes on the parlor rug.
So"unk" answered one ofthoselittle ads in the Pathfindermagazine,
sending along the required dollar bill. After a while, he got an official
RUSS METZ!
looking prescription with a scrawl across it: "Make up your mind to
quit."
It became the town joke, but not to uncle. He figured it made good
sense and felt he'd gotten his dollar's worth. And anyone who has ever
tried the cure, knows this prescription is stillthe only sure cure.
Kicking the habit would be the easiest thing in the world, if you could
stay away from others who have done it. Those fat, nervous evangelists
make a fellow so jumpy he automatically reaches for a fag, before he,
himself, gets into such a miserable state of repairs. Wasn't for those
jokers and trying to balance the bank book and writing a column, I
could dump the disease with no sweat.
Buying the stop-smoking pills is not the evil BBB thinks it is. There's
a good chance the things provide just the fight psychological barrier
against "old demon nicotine" needed by weak-minded tobacco-heads.
People huff and puff just to see the smoke billow out of their faces.
If you don't believe it, smoke a cigarette with your eyes closed.
• You not only will give up smoking in your sleep, it may even open
your eyes on the strange hold the stuff has on you.
-RM-
Some years ago, a tourist was traveling along
Como in northern Ital)
a friendly old gardener opened the gate and showed
grounds,
when the owner had last been there.
"Twelve years ago."
"Does he ever write to you?"
"No."
"From whom do you get your instructions?"
"From his agent in Milan."
"Does he come?"
"Never."
"Who, then, comes here?"
"I am almost always alone; only once in a while,
comes."
"But you keep this garden in such fine condition
you expected your master to come tomorrow."
The old gardener promptly replied: "Today, sir,
-RM-
"When a man sees a woman stumbling along with
twice too heavy for her, wearily shifting it from fight
trying in vain to hold up her skirts with her elbows,
desire is to put his muscles at her service,"
in the Chicago Journal six decades ago. She
"Yet, he knows his offer will be politely refused. Her
express sentences varying from 'I am sorry, but it
proper', to 'Mind you own business', with o,
inevitable reply.
"And all the time she would like nothing better than to
help. But she has heard warning tales all her life-long, !
annoyances, the confusior
imprudent women, and she
or any of the evidences of his caste and quality."
"And probably she is wise. The Devil is
and it is easier to keep out of trouble than to get out of it.
a long way we have gone from original creation,
being cannot put his hands out to help another human
mper Fidelis.
