State v. Cole ( 1979 )

LINDE, J.,

specially concurring.

As the Court’s opinion states, the trial judge in this case became incapacitated after the jury was selected and sworn but before any testimony was taken. Under the circumstances, the risk of serious prejudice to the defendant was not such as to require the state to take the initiative of attempting to find another judge to complete the trial.

In a case in which witnesses have been examined and cross-examined, including perhaps the defendant himself, the mistrial might be much more prejudicial, and the state’s burden of showing that it is "impossible to proceed with the trial,” ORS 131.525, when the defendant is prepared to continue with a new judge might arguably be greater. Of course, in the light of the statute and article I, section 12 of the constitution,¹ that question does not hinge on decisions of the United States Supreme Court. I add this brief opinion only to draw attention to the fact that the issue is not presented or decided in this case.

1 Or Const, art I, §12:

No person shall be put in jeopardy twice for the same offence