Taylor v. State , 1980 Wyo. LEXIS 278 ( 1980 )

RAPER, Chief Justice,

files the following statement, in which ROONEY, Justice, joins:

I concur and join in the court’s opinion. My only hesitancy has been with that part of the conditions under which a verdict may be accepted when it is less than unanimous, set out as 6(B) requiring the trial judge to inform the defendant that “[ajnother trial judge will be assigned to the second trial if that is defendant’s desire.”

It appears to me that we are amending Rule 23(d) and (e), W.R.Cr.P. by imposing another condition under which a trial judge may be peremptorily disqualified from presiding and thus violating our own rule of procedure. If the trial judge is biased or prejudiced against the defendant, then the regular procedure for disqualification for cause provided by Rule 23(e) should be followed. I cannot believe that a judge can be considered biased and prejudiced, per se, because he has been through one trial, which is the implication of this requirement.

It is not entirely clear to me wherein such a condition to waiver of a unanimous verdict has any relevancy. To change judges following a mistrial, in the absence of bias or prejudice, in fact deprives the system of justice of the best fitted judge to go into a second trial. While something new always shows up in a second trial, most of the new trial is a replay of the first. The trial judge’s acquaintanceship with the evidence to be produced has removed most of the surprises, has created an awareness of possible pitfalls, and the danger of hasty rulings is lessened. A new judge will be required to prepare himself from scratch, perhaps hold a more extensive pretrial conference than otherwise would be necessary, must possibly leave his own district which involves time lost and the expense of travel.

I entertain some reservations as to the useful purpose of the requirement.