STATE OF NEW JERSEY VS. ADRIENNE N. SMITH AND ORVILLE COUSINS (17-08-1176, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0838-20T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. December 31, 2020
APPELLATE DIVISION
ADRIENNE N. SMITH and
ORVILLE COUSINS,
Defendants-Appellants.
________________________
Argued December 7, 2020 – Decided December 31, 2020
Before Judges Fasciale, Mayer and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 17-08-
1176.
Paul Darakjian argued the cause for appellant
Adrienne Smith (Lucianna & Lucianna, PA, Frank
Carbonetti, and Paul Darakjian, on the briefs).
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant Orville Cousins (Joseph
E. Krakora, Public Defender, attorney; Daniel S.
Rockoff, of counsel and on the brief.). 1
1
On December 2, 2020, former trial counsel for defendant Orville Cousins
withdrew and Daniel Rockoff, Assistant Deputy Public Defender, executed a
William P. Miller, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, on the brief).
The opinion of the court was delivered by
FASCIALE, P.J.A.D.
In this murder trial, which had been interrupted by the COVID-19
pandemic (the pandemic), where the jury had been impaneled and sworn and
the trial was well under way, we granted defendants leave to appeal from a sua
sponte order declaring a mistrial and denying their motions to dismiss th e
indictment on double jeopardy grounds. We did so to determine whether the
ongoing pandemic provided a sufficient legal reason and manifest necessity for
the judge to terminate the trial. It positively and decidedly did. In reaching
our conclusion and declining to dismiss the charges, we applied age-old legal
principles guiding the federal and state constitutional prohibition against
double jeopardy.
The COVID-19 global pandemic has indiscriminately spread and
continues to escalate throughout the United States. In New Jersey, the rapidly
rising incidence of COVID-19 has necessitated stay-at-home orders and
___________________________
substitution of attorney. Mr. Rockoff did not represent Cousins during the
trial.
A-0838-20T4
2
required certain operations cease to reduce the rate of community spread.2 As
of mid-December, the Centers for Disease Control and Prevention (CDC)
reported over 415,000 cases and over 18,000 fatalities in our state,3 while the
number of cases and fatalities across the country continue to rise at a
staggering pace.4 In response to the public health hazard posed by COVID-19,
courts nationwide have ordered the suspension of jury trials.5 Since early
2
See Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 544(a) (Apr. 6, 2020);
Exec. Order No. 158 (June 29, 2020), 52 N.J.R. 1458(a) (Aug. 3, 2020); Exec.
Order No. 173 (Aug. 3, 2020), 52 N.J.R. 1635(a) (Sept. 8, 2020); Exec. Order
No. 204 (Nov. 30, 2020).
3
See CDC COVID Data Tracker, Ctrs. For Disease Control and Prevention,
https://covid.cds.gov/covid-data-tracker/#cases. (last updated Dec. 17, 2020).
4
As of December 18, 2020, the CDC reports that the total cases in the United
States is over 16,000,000 and total fatalities over 306,000. See CDC COVID
Data Tracker, Ctrs. For Disease Control and Prevention,
https://covid.cdc.gov/covid-data-tracker/#cases. (last updated Dec. 17, 2020).
5
As of November 20, 2020, twenty-six district courts have suspended jury
trials, while many others have taken steps to reduce the risk of infection while
conducting trials. See Courts Suspending Jury Trials as COVID-19 Cases
Surge, United States Courts (Nov. 20, 2020),
https://www.uscourts.gov/news/2020/11/20/courts-suspending-jury-trials-
covid-19-cases-surge. Additionally, seven states and the District of Columbia
have suspended jury trials until further notice, four states have suspended jury
trials until January, and four states have suspended jury trials until February.
See Coronavirus and the Courts, Nat'l Ctr. for State Courts,
https://www.nscs.org/newsroom/public-health-emergency. (last visited Dec.
14, 2020). The remaining states have not issued statewide orders suspending
jury trials, but some have issued local orders affecting the continuation of jury
trials. Id.
A-0838-20T4
3
March, the New Jersey Supreme Court has regularly provided significant
updates regarding how the administration of justice could be accomplished
within the confines of state and local COVID-19 regulations.6 Our Court
continues to meticulously monitor the trajectory of COVID-19 cases statewide
and is consistently balancing the competing interests of those involved in jury
trials, such as defendants, victims, jurors, counsel, and members of the
judiciary. The judge carefully navigated the trial through these challenging
times.
We hold that the COVID-19 pandemic—an unexpected, untoward, and
undesigned public health crisis, which does not bespeak bad faith, inexcusable
neglect, inadvertence, or oppressive conduct by counsel—coupled with the
unique facts of this case, presents a legally sufficient reason and manifest
necessity to terminate defendants' trial. In analyzing whether to sua sponte
terminate a trial due to the COVID-19 pandemic after a jury has been
impaneled and sworn, trial judges should consider: (1) the circumstances that
created the urgent need to discontinue the trial, including whether it was due to
bad faith, inexcusable neglect, inadvertence, oppressive conduct, or
prosecutorial or defense misconduct; (2) the existence of viable alternatives;
6
See NJCourts COVID-19 Updates, New Jersey Courts,
https://njcourts.gov/public/covid19.html. (last visited Dec. 17, 2020).
A-0838-20T4
4
(3) the extent of any prejudice to a defendant by a second trial; (4) whether a
second trial accords with the ends of public justice and judicial administration;
and (5) any other relevant factors unique to the facts of the case.
Here, the judge considered these factors and did not abuse his discretion
by sua sponte declaring the mistrial. In performing his sound analysis, the
judge properly balanced defendants' constitutional and statutory rights while
maintaining the public's interest in fair trials, mindful of the unique and
unprecedented public health risks facing participants owing to the COVID-19
pandemic. Consequently, we conclude that double jeopardy does not bar a
subsequent trial.
We therefore affirm.
I.
Defendants Adrienne Smith and Orville Cousins are siblings. According
to the State, Smith killed her husband and worked with Cousins to hide the
body. On August 30, 2017, a Bergen County grand jury indicted Smith for
first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); and third-degree hindering her
own detention or apprehension, N.J.S.A. 2C:29-3(b)(4). It indicted Smith and
Cousins for second-degree desecrating, damaging, or destroying human
remains, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:22-1(a)(2); second-degree
unlawfully disturbing, concealing, moving, or concealing human remains,
A-0838-20T4
5
N.J.S.A. 2C:2-6 and N.J.S.A. 2C:22-1(a)(1); and third-degree suppressing by
way of concealment or destruction of evidence, N.J.S.A. 2C:2-6 and N.J.S.A.
2C:29-3(b)(1).
Jury selection began on January 7, 2020 and was protracted because of
the number of witnesses expected to testify and the anticipated length of trial.
The trial judge, Judge Christopher R. Kazlau, advised the jurors that a lengthy
commitment was required, and that trial would be completed on or before
April 9, 2020. On February 12, 2020, the trial commenced. At that point,
there was limited public knowledge about the COVID-19 virus and how it
would eventually spread. 7 The gravity of the COVID-19 pandemic quickly
became more apparent and, on March 12, 2020, the jury sent a note to the
judge requesting that he address how the pandemic would affect the case and
their service. The judge addressed the question on the record in the presence
of the parties with the information available to him at that time.
On March 15, 2020, our Supreme Court suspended all jury trials. See
Notice New Jersey Court Operations—COVID-19 Coronavirus: Rescheduling
7
See Michelle A. Jorden & M.D., Sarah L. Rudman, M.D., et. al, Evidence
for Limited Early Spread of COVID-19 Within the United States, Ctrs. For
Disease Control and Prevention Morbidity and Mortality Weekly Report 682-
683 (June 5, 2020),
https://www.chttps://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6922e1-
H.pdfdc.gov/mmwr/volumes/69/wr/pdfs/mm6922e1-H.pdf.
A-0838-20T4
6
of In-Court Proceedings Scheduled for the Week Beginning Monday, March
16, 2020; Continuation of All Critical Functions 1-3 (March 15, 2020). In
accordance with our Supreme Court's order, and through no fault of any of the
participants, the trial could not continue. Accordingly, on March 17, 2020, the
judge advised the jurors that the trial was postponed and that they would be
notified when their service at trial would resume. At the time the trial was
suspended the State was still presenting its case with its twenty-ninth witness
on the stand. The State disclosed that it anticipated calling an additional three
to four witnesses before it would rest.
Three months later, Judge Glenn A. Grant, J.A.D., Acting
Administrative Director of the Courts, issued a notice to the bar continuing the
suspension of new trials but providing for the resumption of "ongoing jury
trials suspended during COVID-19 . . . consistent with public health
precautions with the consent of all parties[.]" Notice to the Bar COVID-19—
Fourth Omnibus Order on Court Operations and Legal Practice 1 (June 11,
2020) (Fourth Omnibus Order). Thereafter, on June 22, 2020, two jurors
contacted the judge to inquire about their obligations moving forward. One
juror asked about the status of trial and whether she could take a planned
vacation. Another juror called to advise the judge that he had started a new
job and asked to be excused.
A-0838-20T4
7
On July 22, 2020, our Supreme Court authorized incremental resumption
of certain new criminal and civil trials, without the consent of the parties. See
Notice to the Bar COVID-19—Criminal and Civil Jury Trials to Resume
Incrementally Using a Hybrid Process with Virtual (Video) Jury Selection and
Socially Distanced In-Person Trials (July 22, 2020). In its Seventh Omnibus
Order, the Court authorized "trials to be conducted in person with social
distancing, consistent with the Court's July 22, 2020 Order[.]" See Notice to
the Bar COVID-19—Seventh Omnibus Order on Court Operations and Legal
Practice–Concluding Certain General Extensions; Continuing Individualized
Adjustments (July 24, 2020).
In accordance with our Supreme Court's orders, the judge took steps to
safely resume the trial. The judge conducted multiple status conferences to
ensure the proceedings would comply with the CDC and Administrative Office
of the Courts (AOC) guidelines. Along these lines, he made numerous
proposals to the parties.
The judge proposed resuming the trial in a larger courtroom, which
would allow for social distancing 8 in accordance with the Court's July 22, 2020
8
The CDC defines "social distancing" as the practice of staying at least six
feet from other people who are not from your household. See Social
Distancing, Ctrs. for Disease Control and Prevention,
A-0838-20T4
8
Order. He also discussed resuming trial with all participants wearing personal
protective equipment, including face shields and masks, and installing
plexiglass barriers. He invited counsel to inspect the larger courtroom and the
jury room, which they declined to do.
The State consented to the resumption of the trial using these mitigation
and safety measures. Defendants did not. Defendants themselves suffer from
underlying health conditions and preferred remaining incarcerated rather than
resuming the trial. 9 The CDC has recognized that individuals with certain
conditions may be at an increased risk for severe illness from the COVID-19
virus.10
Defense counsel also objected to social distancing and mask protocols
and expressed concern that the protocols would compromise their ability to
effectively represent their clients should trial resume. Cousin's attorney
expressed safety concerns about resuming the trial given his own age. One of
___________________________
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-
distancing.html. (last updated Nov. 17, 2020).
9
We considered defendants' health conditions, as did the judge, but there is no
need to disclose them, especially in a published opinion.
10
See People with Certain Medical Conditions, Ctrs. for Disease Control and
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html. (last updated Dec. 1, 2020).
A-0838-20T4
9
Smith's attorneys, 11 who is ninety-seven-years old, objected to resuming the
trial "for the health and safety of all involved." The CDC has found that
COVID-19 is particularly devasting to individuals in counsels' age groups,
making them more than ninety times more likely to die from COVID-19 and at
least five times more likely to be hospitalized than individuals age eighteen to
twenty-nine.12 Smith's second attorney expressed a desire to resume the trial
only under the "gold standard" that existed prior to the pandemic, meaning a
trial conducted under normal circumstances and without COVID-19
precautions. The judge did not fault, nor do we, the collective positions of
defendants or their counsel.
On October 23, 2020, four months after our Supreme Court authorized
resumption of jury trials, the judge informed counsel and the parties at another
status conference on the record that he was considering terminating the trial
given the "very high risk of prejudice" to defendants as a result of the seven -
month suspension of the trial "with really no end in sight." The judge asked
11
Smith is represented by two attorneys in this matter: Frank Carbonetti and
Frank Lucianna.
12
See COVID-19 Hospitalization and Death by Age, Ctrs. for Disease Control
and Prevention, Ctrs. for Disease Control and Prevention,
https://cdc.gov/coronavirus/2019-ncov/covid-data/investigations-
discovery/hospitalization-death-by-age.html. (last updated Aug. 18, 2020).
A-0838-20T4
10
the parties to brief the issue, and three days later the judge conducted oral
argument.
Defendants objected to the judge declaring a mistrial, refused to resume
the trial because of health risks, and requested continued suspension of the
trial until—in their view—they could return to the "gold standard" conditions
that existed before the pandemic, or until the Supreme Court itself ordered
resumption of the trial. They argued that double jeopardy would attach if the
judge declared a mistrial over the parties' objections. Although the State
objected to a mistrial, it recognized the reality that the suspension of the case
could not "linger in perpetuity." But the State contended that if the judge
declared a mistrial, double jeopardy would not attach because defendants
remained unwilling to resume the trial.
On October 26, 2020, seven months after the judge suspended the trial,
he sua sponte declared a mistrial and entered the order under review. 13 In his
oral decision, the judge explained that a manifest and overriding necessity
required the declaration of a mistrial. The judge also found that when he
suspended the trial in March 2020, there were, in his estimation, "many days,"
"if not weeks," remaining of the trial. The State expected to produce
13
Defendants did not seek permission to file an emergent motion challenging
this order, or otherwise move to stay the order pending their motion for leave
to appeal.
A-0838-20T4
11
additional witnesses before it rested; if they desired to do so, defendants had
their case to present to the jury; adequate time would be allocated for any
motions; the charge conference remained; the jury charge had to be given; and
the jury needed to sufficiently deliberate. The judge explained:
At this time, we face an uncertain time table as to
when the pandemic will be [over] and or whether there
will be vaccines and or treatments available such that
the resumption of this trial may occur under the
circumstances that existed prior to the suspension of
the trial. At the very least, most optimistically, that
would be months from now.
The circumstances that have resulted in the suspension
of this trial are historic and unprecedented. Both the
State and defendants submitted that they wish to
preserve this jury moving forward. However, this
[c]ourt finds that after a seven[-]month delay and with
all of the attendant circumstances and actual and
potential consequences flowing from that delay, the
pandemic, the prospect of an indefinite further delay
that will last months, that termination of this trial is
required by manifest [or] overriding necessity.
[Defendant] Smith faces life in prison if convicted.
[Defendant] Cousins faces up to [twenty-five] years in
prison if convicted. I have substantial concern that the
trial's result will be tainted, even if the trial were to
resume today, let alone months from now[.]
The judge found that there were no viable alternatives to terminating the
trial. He reached this conclusion after conducting multiple conferences at
which he discussed with counsel steps to ensure compliance with CDC and
AOC guidelines, including "the need to voir dire the jury prior to resuming the
A-0838-20T4
12
trial, the potential complications with resuming after . . . a lengthy delay [of
seven months] and the jurors' recollection of testimony and the potential need
for playback of testimony, months removed from when the jury first heard the
testimony, with the witnesses, in person." The judge noted that playback
would likely be insufficient because it "would occur many months removed
from when [the jury] actually had the opportunity to listen to the testimony,
view the evidence and do that in conjunction with an assessment and
evaluation of the demeanor of the witnesses." The judge also considered the
"burden, sacrifice, and hardship on [the] jury."
Defendants and defense counsel remained steadfast in their safety
concerns. The judge did not fault them for raising these concerns and found
that defendants were not "acting in bad faith" by withholding their consent.
However, the judge noted—consistent with his efforts—that our Supreme
Court permitted resumption of jury trials consistent with public health
precautions.
Notably, the judge found the circumstances that created this situation
involved "an unprecedented global pandemic that has impacted the functions
of our judicial system in New Jersey and impaired the ability of this [c]ourt to
resume this trial under the conditions in which it began." He continued,
explaining "[t]his situation certainly was not created by any prosecutorial
A-0838-20T4
13
misconduct, as the State has been ready and waiting to resume from the very
day months ago when it was permitted," and "[t]he initial suspension of trial in
March [2020] due to the pandemic was beyond the control of all parties and
resulted in an arguably untenable delay, threatening the fairness of the trial,
even at the time [our] Supreme Court allowed the resumption of suspended
trials in June [2020]."
The judge rejected the State's argument that, as an alternative, the jury
should have been polled about their future availability to resume the trial prior
to declaring a mistrial. The judge found that polling the jury did not "address
the effect of what is sure to be a month[s-]long additional delay" or possibly
"an indefinite delay" on the jury's recollection of the evidence and ability to
serve. Looking long term, "[e]ven if the trial were to resume at some point
with the existing jury, if the defendants were convicted, the effects of the
extraordinary circumstances under which this trial was suspended, resumed,
and concluded would inevitably form a basis for appeal[.]" See State v. Loyal,
164 N.J. 418, 437 (2000) (noting that "if a mistrial vindicates a significant
state policy and 'aborts a proceeding that at best would have produced a verdict
that could be upset by one of the parties,' a defendant's interest may be
outweighed by the 'equally legitimate demand for public justice.'") (quoting
Illinois v. Somerville, 410 U.S. 458, 471 (1973)).
A-0838-20T4
14
Thus, the judge found that there was
an urgent need to discontinue the trial . . . to safeguard
the defendants from any prejudice stemming from the
delay and to protect the ends of public justice, as the
totality of the circumstances of the continued
suspension have only eroded and will continue to
erode the prospects of a fair and just result in this trial.
. . . [Defendant] Smith faces life in prison if convicted
and [Defendant] Cousins theoretically faces up to
[twenty-five] years. This [c]ourt is aware of the
sacredness of the lives before me but also the
sacredness of the life that was taken.
In the interest of justice, a second trial will proceed
consistent with public health precautions at a date to
be determined. A second trial will not prejudice the
defendants and this [c]ourt finds it's necessary not
only to safeguard the rights of the defendants to a full
and fair trial but also to protect the interest of the
public, to have its trial processes applied fully and
fairly in the due administration of criminal law.
Under all the circumstances of this case, balancing the
interest of the defendants and the public, a mistrial is
warranted[,] and it is not fundamentally unfair to
require retrial of the defendants.
Three weeks after the judge declared the mistrial, on November 16,
2020, and in response to the second wave of the pandemic, our Supreme Court
again suspended new in-person jury trials based on COVID-19 trends and
health and safety concerns. See Notice to the Bar COVID-19—Suspension of
New In-Person Jury Trials and In-Person Grand Jury Sessions; Revised End-
A-0838-20T4
15
Dates for Excludable Time (Nov. 16, 2020) (November 16, 2020 Suspension).
In its order, our Supreme Court stated:
In its initial response to the COVID-19 crisis, the
Court in March 2020 authorized a swift transition
from in-person to remote court operations. When the
virus generally was controlled in New Jersey, the
Court in June 2020 announced a statewide progression
from Phase 1 to Phase 2 of its post-pandemic plan,
including the incremental resumption of certain in-
person matters. In the past several months, the Court
gradually expanded the scope of events and services
that could be conducted in person.
Judges at all levels of the courts have now conducted
more than 100,000 remote court events involving
more than 1.2 million participants. At the same time,
limited in-person proceedings, including socially
distanced jury trials and in-person grand jury sessions,
have enabled progress in areas that had slowed during
fully remote operations. Among other steps, the Court
in its July 22, 2020 Order authorized the resumption
of jury trials in a hybrid format including primarily
virtual jury selection and socially distanced in-person
trials. Verdicts have been returned in a number of
criminal and civil cases, and the scheduling and
conferencing of cases for real trial dates has prompted
resolutions in more than 115 criminal cases, involving
more than [sixty] detained defendants, as well as
settlements in more than 225 civil cases.
[Id. at 1-2.]
The Court explained that "[t]he increasing rates of new cases,
hospitalizations, and deaths make it impracticable and unsafe for certain in-
person court events to continue at the level reached during the past few
A-0838-20T4
16
months." Id. at 3. Thus, "[a]lthough it is not necessary at this time to prohibit
all on-site presence and in-person events at court locations, in-person jury
trials and in-person grand jury sessions will now be suspended based on
current COVID-19 trends and health and safety concerns." Ibid. Additionally,
the Court provided, as it had done so in earlier orders, that
[i]n recognition of the pervasive and severe effects of
the COVID-19 public health crisis, the [trial judge] in
any individual matter consistent with Rule 1:1-2(a)
may suspend proceedings, extend discovery or other
deadlines, or otherwise accommodate the legitimate
needs of parties, attorneys, and others in the interests
of justice[.]
[Id. at 6.]
II.
On appeal, defendants argue that the judge abused his discretion by sua
sponte declaring a mistrial because there was no "manifest necessity." They
maintain that double jeopardy bars retrial and urge us to dismiss all charges in
the indictment. They argue the judge acted with "imprudent haste," failed to
consider alternatives to a mistrial, including polling the jury , and that he
lacked the authority to declare a mistrial due to the Omnibus Orders.
Defendants further contend they suffered prejudice, and that they did not
waive their constitutional right to be free from double jeopardy by withholding
their consent to resume trial.
A-0838-20T4
17
The State argues that retrial is permissible under N.J.S.A. 2C:1-9(d)(3)
because the mistrial declaration was "required by a sufficient legal reason and
a manifest or absolute or overriding necessity." In addition, the State asserts
alternatively that retrial is permissible under N.J.S.A. 2C:1-9(d)(1) because
defendants' adamant refusal to resume trial "could fairly be considered a
waiver of their right to object to the trial's eventual (and completely
foreseeable) termination." 14
III.
"Appellate courts 'will not disturb a trial [judge's] ruling on a motion for
a mistrial, absent an abuse of discretion that results in a manifest injustice.'"
State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. Jackson, 211 N.J. 394,
407 (2012)). Pertinent to this appeal, "appellate reluctance to interfere with a
sua sponte declaration of a mistrial should be even more pronounced where it
is plain that a primary motive for the trial judge's course was solicitude for the
14
Because we agree that manifest necessity existed, we need not address the
State's alternative argument that retrial was permissible under N.J.S.A. 2C:1-
9(d)(1). We note briefly N.J.S.A. 2C:1-9(d)(1) provides that termination of a
trial is not improper if "[t]he defendant . . . waives . . . his right to object to the
termination." Here, defendants forcefully and consistently objected to the
mistrial. Withholding consent to resumption of the trial during the pandemic,
given their high-risk medical condition, does not counter that opposition. See
State v. Barnes, 261 N.J. Super. 441, 447 (App. Div. 1993) (indicating that we
rejected the trial court's finding that the defendant acquiesced in the
declaration of a mistrial because the defendant expressly reserved his right to
move for a dismissal of the charges).
A-0838-20T4
18
defendant's interests." State v. Farmer, 48 N.J. 145, 171 (1966). Where a trial
judge sua sponte declares a mistrial over the objections of the State and
defendants, the "propriety of the mistrial depends upon the sound exercise of
the [trial judge's] discretion." Loyal, 164 N.J. at 436 (quoting State v.
Rechtschaffer, 70 N.J. 395, 406 (1976)). "[D]iscretion is exercised improperly
. . . if the [trial judge] has an appropriate alternative course of action." State v.
Allah, 170 N.J. 269, 281 (2002).
A.
We begin our analysis by reaffirming certain bedrock principles of our
criminal justice system. The Double Jeopardy Clause of the Fifth Amendment
of the United States Constitution guarantees that no person shall "be subject
for the same offence to be twice put in jeopardy of life or limb." U.S. Const.
amend. V. The New Jersey Constitution similarly provides that "[n]o person
shall, after acquittal, be tried for the same offense." N.J. Const. art. I, ¶ 11.
Our Supreme Court "has consistently interpreted the State Constitution's
double-jeopardy protection as coextensive with the guarantee of the federal
Constitution." State v. Miles, 229 N.J. 83, 92 (2017). Along these lines, it is
well settled that "a trial [judge] must dismiss an indictment if prosecution
would violate the defendant's constitutional rights" of freedom from double
jeopardy. State v. Abbati, 99 N.J. 418, 425 (1985).
A-0838-20T4
19
When the defendant is tried by a jury in a criminal case, double jeopardy
protections are not dependent on a completed trial, but rather "attaches after
the jury is impaneled and sworn." Allah, 170 N.J. at 279. "Because jeopardy
attaches before the judgment becomes final, the constitutional protection also
embraces the defendant's 'valued right to have his trial completed by a
particular tribunal.'" Arizona v. Washington, 434 U.S. 497, 503 (1978)
(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). From that point on the
defendant "is entitled to have the trial proceed to its normal conclusion, i.e.,
judgment by the [trial judge] or verdict of the jury." Farmer, 48 N.J. at 169.
"If the jury is discharged before that time without [the defendant's] consent or
without legal justification, the abortive ending is equivalent to acquittal and
bars retrial." Ibid.
The Double Jeopardy Clause does not, however, "create an absolute bar
in every case of retrial." State v. Dunns, 266 N.J. Super. 349, 362 (App. Div.
1993). "[A] defendant's valued right to have his trial completed by a particular
tribunal must in some instances be subordinated to the public's interest in fair
trials designed to end in just judgments." Wade, 336 U.S. at 689. That is not a
foreign concept in New Jersey. We have likewise stated "[t]o set free criminal
suspects whenever a trial is aborted would deny the innocent the protection
due them and defeat the social contract upon which government is based."
A-0838-20T4
20
State v. Torres, 328 N.J. Super. 77, 86 (App. Div. 2000). In 1966, Justice John
J. Francis writing for the majority in Farmer explained:
the double jeopardy protection does not mean that
once an accused has been put on trial regularly, the
proceeding must run its ordinary course to judgment
of conviction or acquittal. The rule does not operate
so mechanistically. If some unexpected, untoward and
undesigned incident or circumstance arises which does
not bespeak bad faith, inexcusable neglect or
inadvertence or oppressive conduct on the part of the
State, but which in the considered judgment of the
trial [judge] creates an urgent need to discontinue the
trial in order to safeguard the defendant against real or
apparent prejudice stemming therefrom, the Federal
and State Constitutions do not stand in the way of
declaration of a mistrial. And this is true even if the
conscientious act of the trial judge may be
characterized as the product of "extreme solicitude" or
"overeager solicitude" for the accused. Moreover, if
an incident or circumstance of that nature moves the
[trial judge] to order a mistrial not only to safeguard
the right of the defendant to a full and fair trial, but
also to protect the right of society to have its trial
processes applied fully and fairly in the due
administration of the criminal law, there is even less
basis for a claim of trespass upon the privilege against
double jeopardy. Clearly the societal right to have the
accused tried and punished if found guilty stands side
by side with the right of the accused to be prosecuted
fairly and not oppressively. While the public right,
when it must be considered alone, may not weigh as
heavily in the scale as that of the defendant because of
the constitutional dimensions of the privilege against
double jeopardy and the superior capacity of the State
to investigate and prepare for prosecutions,
nevertheless when exercise of the trial [judge's]
discretion may fairly be said to serve both interests,
A-0838-20T4
21
there is certainly less substantial reason to question its
propriety.
[Farmer, 48 N.J. at 174-75 (emphasis added) (citations
omitted).]
Of course, it is well established that mistrials declared with the
defendants' consent do not bar retrial. State v. Kelly, 201 N.J. 471, 485
(2010). But even if a defendant objects to the declaration of a mistrial, as in
this case, "termination of a trial after jeopardy attaches does not necessa rily
prohibit subsequent re-prosecution." Allah, 170 N.J. at 280. "Only the
improper termination of proceedings bars retrial." Ibid. "Where the [trial
judge] finds a sufficient legal reason and manifest necessity to terminate a
trial, the defendant's right to have his initial trial completed is subordinated to
the public's interest in fair trials and reliable judgments." Loyal, 164 N.J. at435 (citing Wade, 336 U.S. at 689).
Referring to longstanding legal principles even before Farmer, the New
Jersey Supreme Court set out general guidelines for determination of whether
the discharge of the jury prior to verdict is justified:
"[I]f the trial was terminated or the jury discharged
before verdict because of incapacitating illness of the
judge or a juror or jurors or of the defendant, or
misconduct or disqualification of some members of
the jury, or on account of an untoward incident that
renders a verdict impossible, or some undesigned
matter of absolute necessity, or the failure of the jury
to agree upon a verdict after a reasonable time for
A-0838-20T4
22
deliberation has been allowed, subsequent prosecution
for the offense [is] not barred," for reasons of justice
and the public interest.
[State v. Romeo, 43 N.J. 188, 195 (1964), cert. denied,
379 U.S. 970 (1965) (second alteration in original)
(quoting State v. Williams, 30 N.J. 105, 121 (1959)).]
In addition to the constitutional prohibition, defendants are also
"provid[ed] statutory protection from double jeopardy[.]" Allah, 170 N.J. at
279. The New Jersey Legislature enacted N.J.S.A. 2C:1-9, which effectively
"adopted the test enunciated in State v. Romeo[.]" Dunns, 266 N.J. Super. at
364. N.J.S.A. 2C:1-9(d)(3) provides that the prohibition of double jeopardy
does not apply where "[t]he trial [judge] finds that the termination [of the trial]
is required by a sufficient legal reason and a manifest or absolute or overriding
necessity." If a trial is terminated over the objection of a defendant due to a
manifest necessity, "a second proceeding is constitutionally permissible."
Torres, 328 N.J. Super. at 86.
In balancing the competing interest of such a mistrial, "[t]he manifest
necessity standard provides sufficient protection to the defendant's right in
having his case decided by the jury first selected while maintaining the public's
interest in fair trials designed to conclude in just judgments." Ibid. As the
United Stated Court of Appeals for the Third Circuit has recently and
insightfully proclaimed:
A-0838-20T4
23
The Fifth Amendment's Double Jeopardy Clause
ordinarily bars retrials. But a retrial after a mistrial
does not amount to double jeopardy when the mistrial
was manifestly necessary. Though manifest necessity
requires a "high degree of necessity," making that
judgment call is "reserved to the broad discretion of
the trial judge." We scrutinize a mistrial more closely
if the trial judge has not exercised his "sound
discretion" or if the prosecutor appears to be
"harass[ing]" or gaining a "tactical advantage over the
accused."
[Orie v. Sec'y Pennsylvania Dep't of Corr., 940 F.3d
845, 851 (3d Cir. 2019) (alteration in original) (first
quoting Renico v. Lett, 559 U.S. 766, 774 (2020); then
quoting Arizona, 437 U.S. at 508, 510 n.28).]
"The 'manifest necessity' standard has existed under the federal
Constitution since at least 1824, . . . and has long been recognized as guiding
our courts in interpreting New Jersey's double jeopardy prohibition under
similar circumstances." Loyal, 164 N.J. at 453 (Coleman, J., dissenting).
"Because a defendant's right to be free from double jeopardy is fundamental,
the State shoulders a 'heavy' burden of demonstrating the '"manifest necessity"'
for any mistrial declared over the objection of the defendant.'" Ibid. (quoting
Arizona, 434 U.S. at 505).
Determining whether manifest necessity or the ends of public justice
require a trial judge to declare a mistrial depends on the unique facts of the
case and the sound discretion of the trial judge. Ibid. As the United States
Supreme Court noted,
A-0838-20T4
24
the law has invested Courts of justice with the
authority to discharge a jury from giving any verdict,
whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest
necessity for the act, or the ends of public justice
would otherwise be defeated. They are to exercise a
sound discretion on the subject; and it is impossible to
define all the circumstances, which would render it
proper to interfere. To be sure, the power ought to be
used with the greatest caution, under urgent
circumstances, and for very plain and obvious
causes[.]
[United States v. Perez, 22 U.S. (9 Wheat.) 579, 580
(1824).]
But there are no rigid rules as to what constitutes "manifest necessity,"
and "[b]oth the United States and the New Jersey Supreme Courts have
recognized that it is impossible to define all of the circumstances where there
is sufficient reason to declare a mistrial." Dunns, 266 N.J. Super. at 364; see
Renico, 559 U.S. at 774 (noting that "the 'manifest necessity' standard 'cannot
be interpreted literally,' and that a mistrial is appropriate where there is a
'"high degree"' of necessity." (citing Arizona, 434 U.S. at 506)).
B.
That brings us to the heart of this case: whether the ongoing global
COVID-19 pandemic—and its associated enormous practical challenges to the
fair and just administration of justice—provided the judge with a sufficient
A-0838-20T4
25
legal reason and manifest necessity, under the unique facts of this case, to
terminate the trial without violating defendants' double jeopardy rights.
Clearly, "[w]hether 'manifest necessity' or 'the ends of public justice'
require declaration of a mistrial depends on the unique facts of the case and the
sound discretion of the trial [judge]." Loyal, 164 N.J. at 435. It is undisputed
that these particular facts—in the midst of a global pandemic—are unique.
That is an understatement.
In reviewing a trial judge's sua sponte decision to terminate a jury trial
after the jury had been sworn, because in the trial judge's judgment a sufficient
legal reason and manifest necessity exists to warrant a mistrial, we turn to
guidance from our Supreme Court, which provided relevant considerations:
Did the trial [judge] properly exercise [his or her]
discretion so that a mistrial was justified? Did [the
trial judge] have a viable alternative? If justified,
what circumstances created the situation? Was it due
to prosecutorial or defense misconduct? Will a second
trial accord with the ends of public justice and with
proper judicial administration? Will the defendant be
prejudiced by a second trial, and if so, to what extent?
[Id. at 437 (quoting Rechtschaffer, 70 N.J. at 410-11).]
To our knowledge, there are no published opinions in New Jersey squarely
dealing with this inquiry.
In exercising sound judgment about whether the ongoing COVID-19
pandemic provides a sufficient legal reason and manifest necessity to sua
A-0838-20T4
26
sponte terminate a trial without violating a defendant's double jeopardy
protections, and adhering to guidance provided by our Court, we have
extrapolated from the caselaw certain factors for trial judges to consider: (1)
the circumstances that created the urgent need to discontinue the trial,
including whether it was due to bad faith, inexcusable neglect, inadvertence,
oppressive conduct, or prosecutorial or defense misconduct; (2) the existence
of viable alternatives to a mistrial; (3) the extent of any prejudice to a
defendant by a second trial; (4) whether a second trial accords with the ends of
public justice and judicial administration; and (5) any other relevant factors
unique to the case. Applying this framework to the facts of this case, we see
no abuse of discretion.
(i)
The circumstances that created the situation
The ongoing COVID-19 pandemic is a grave, unprecedented, and
unpredictable public health crisis which has prompted stay-at-home orders,
business closures, and ever-changing operational restrictions. Neither the
judge nor the parties here could have predicted the restrictions on the judiciary
that would become necessary as a result of the pandemic, and even today it
remains unclear when jury trials may be able to return to the status quo.
A-0838-20T4
27
Accordingly, the judge noted "[t]his situation certainly was not created
by any prosecutorial misconduct, as the State has been ready and waiting to
resume from the very day months ago when it was permitted." Furthermore,
"[t]he initial suspension of trial in March [2020] due to the pandemic was
beyond the control of all parties and resulted in an arguably untenable delay,
threatening the fairness of the trial, even at the time [our] Supreme Court
allowed the resumption of suspended trials in June [2020]." The judge
properly did not find fault in defendants' refusal to consent to the resumption
of the trial in June 2020, particularly given defendants' and defense counsels'
high-risk status for complications from COVID-19. Defense counsel acted in
good faith in expressing their concerns for the health of themselves,
defendants, and those participating in the trial. Thus, the circumstances
creating the predicament were beyond the control of all involved and were not
the result of prosecutorial or defense misconduct.
(ii)
The existence of viable alternatives
Unlike State v. Georges, 345 N.J. Super. 538 (App. Div. 2001), and
State v. Love, 282 N.J. Super. 590 (App. Div. 1995), there was simply no
viable or less drastic alternative to declaring a mistrial. And contrary to
defendants' argument, the judge properly considered the alternatives proposed
A-0838-20T4
28
by the parties. Defense counsel proposed that the trial remain suspended until
it could resume under the pre-pandemic conditions. But that could be many
more months in addition to the seven that had elapsed. 15 As Judge Edwin H.
Stern noted, "a delay during any trial of four months is inexcusable and affects
the fact finder's recollection and assessment of credibility." State v. Leonard,
234 N.J. Super. 183, 190, n.4 (App. Div. 1989); see United States v. Chapman,
524 F.3d 1073, 1083 (9th Cir. 2008) (explaining that a trial judge's
determination that a jury's attention span could not withstand a delay of
between two and four weeks was due substantial deference in determining
appropriateness of a mistrial). Here, the judge patiently waited seven months
before raising the subject of declaring a mistrial, which at that point had no
reasonable prospects of resuming in the near future.
15
On September 16, 2020, Dr. Anthony Fauci, Director of the National
Institute of Allergy and Infectious Diseases and one of the lead members of the
White House Coronavirus Task Force, estimated that the country would return
to a "reasonable form of normality" by the end of 2021. See Betsy McKay, Dr.
Fauci Says 'There Will Be an End' to Covid-19, Wall Street Journal (Sept. 16,
2020, 10:24 PM), https://www.wsj.com/articles/fauci-says-there-will-be-an-
end-to-covid-19-11600309449. Recently, Dr. Fauci has suggested that,
assuming the United States achieves a vaccination rate of seventy-five percent
to eighty percent, we may see "some degree of normality that is close to where
we were before" at the end of 2021. See Alvin Powell, Fauci Says Herd
Immunity Possible by Fall, 'Normality' by End of 2021, Harv. Gazette (Dec.
10, 2020) https://news.harvard.edu/gazette/story/2020/12/anthony-fauci-offers-
a-timeline-for-ending-covid-19-pandemic/.
A-0838-20T4
29
Although polling the jury would have created a more complete record
about terminating the trial, the judge correctly found that doing so was not a
viable alternative. Polling the jury in October 2020 would not have answered
the question of whether the jurors could continue to serve for an indefinite
period of time and whether they could have been able to recall the evidence at
some unknown point in the future when the trial eventually resumed. Under
the unique and extraordinary circumstances of this case, there were simply no
alternatives to a mistrial.
As we previously explained, a trial judge's discretion is exercised
improperly "if the [trial judge] has an appropriate alternative course of action."
Allah, 170 N.J. at 281. "[A] curative instruction, a short adjournment or
continuance, or some other [such] remedy, may provide a viable alternative to
a mistrial, depending on the facts of the case." Smith, 224 N.J. at 47; see
State v. Gallegan, 117 N.J. 345, 353 (1989) (noting that under appropriate
circumstances, an adjournment is one of "the alternatives given to [trial
judges] in order to avoid the unnecessary termination of proceedings").
For example, in State v. Modell, 260 N.J. Super. 227, 232 (App. Div.
1992), defense counsel expressed concern as he began to present his case that
the alleged victim, who had appeared on behalf of the State, would fail to
appear for defendant's case with certain records even though the defense had
A-0838-20T4
30
served him with two subpoenas. The trial judge considered the alternative of
striking the testimony of the witness, which would have necessitated dismissal
of four counts of the indictment, but instead declared a mistrial based on
"manifest necessity." Ibid. We were "convinced that the declaration of a
mistrial by the [trial judge] served the ends of public justice while at the same
time . . . protected the defendant's rights." Id. at 245.
In Georges, 345 N.J. Super. at 545-47, we determined there existed no
manifest necessity for a sua sponte mistrial where two jurors were excused
because their parents had died during the trial and the prosecutor went on a
scheduled vacation, causing a two-week delay. The trial judge, over
defendant's objection, had declared the mistrial a manifest necessity because
the delay of two weeks between the close of evidence and resumption of the
trial was "simply too great to permit the jury to fairly remember and evaluate
the testimony[.]" Id. at 541. We reversed, concluding "there was no particular
urgency that necessitated the trial judge's sua sponte declaration of a mistrial
before hearing the arguments of all counsel and examining alternatives to a
mistrial," including "question[ing] the jurors to determine their comfort level
with proceeding, and explain[ing] the availability of read-back testimony,
before determining whether the time lapse was fatal to a fair trial." Id. at 547.
A-0838-20T4
31
And in Love, 282 N.J. Super. at 593, the trial judge sua sponte declared
a mistrial upon learning of his mother-in-law's unexpected death. We
concluded that the trial judge should have considered "[a]ny reasonable
alternative" before declaring the mistrial without defendant's express c onsent,
but was nonetheless satisfied that the sua sponte declaration of mistrial did not
preclude the retrial because it was not "designed to help the prosecution or aid
the State's cause or for any reason based upon the conduct of the trial or
proceedings." Id. at 598. However, the federal court subsequently granted the
defendant's petition for a writ of habeas corpus and held that "[t]he availability
of several adequate, less drastic alternatives," including adjourning the trial or
continuing the trial with a different judge, negated a finding of manifest
necessity and compelled the federal court "to conclude that petitioner's retrial
following a mistrial violated the Double Jeopardy Clause of the United States
Constitution." Love v. Morton, 944 F. Supp. 379, 389-91 (D.N.J. 1996), aff'd,
112 F.3d 131, 139 (3d Cir. 1997).
Here, viable alternatives such as the ones present in the cases discussed
above were not readily available, as a further continuance or adjournment for
an indefinite period was not feasible given the state of the pandemic. As
discussed previously, the judge and counsel conferenced about ways in which
the trial could proceed under our Supreme Court's Omnibus Orders. The judge
A-0838-20T4
32
and counsel contemplated moving to a larger courtroom that would be more
conducive to social distancing, as well as utilizing plexiglass barriers and
personal protective equipment such as masks and face shields, but defense
counsel rejected these suggestions, citing concerns that it could impact the
presentation of their case. The judge and counsel also discussed the possible
need to voir dire the jury prior to resuming the trial and their potential inability
to recall testimony from twenty-nine witnesses from months earlier. The judge
considered the possibility of playing back the testimony to the jury but
expressed concern that playback "months removed from when the jury first
heard the testimony, with the witnesses, in person," would be insufficient
considering the circumstances. The judge was left with no viable alternatives
to proceed with the case.
(iii)
The extent of any prejudice to a defendant by a second trial
There is no indication on this record that defendants will be prejudiced
by a second trial. Defendants contend that there was no prejudice in allowing
the matter to remain suspended until the trial could safely resume at some
indefinite point in the future, but they contend that they will suffer prejudice if
they are retried. Smith argues that she will be prejudiced because she will be
unable to retain her counsel for a second trial, presumably referring to the
A-0838-20T4
33
lawyer who is ninety-seven-years old. But Smith retained co-counsel, from the
same law firm, and there is no suggestion that he is unable to represent Smith
in the second trial.
Additionally, defendants argue that they will be prejudiced by the
mistrial because they will remain detained for an indeterminate period. They
contend that "[t]here is no guidance on when a multi-defendant, three-month
jury trial, will even be considered a candidate for trial during the pandemic."
That is true. However, there is also no guidance on when their trial will be
able to resume under the pre-pandemic "gold standard" standard defendants
seek. The only quick solution to their continued incarceration would have
been for defendants to consent to the resumption of their trial in June 2020.
As the judge found, defendants had credible reasons for declining to do so. At
this point, as the second wave of the pandemic rages on, defendants are facing
a long period of incarceration regardless of whether they wait for the
resumption of their trial or retrial. And as counsel explained during oral
argument, defendants preferred remaining detained until the trial can be safely
resumed.
A-0838-20T4
34
(iv)
Whether a second trial accords with the ends of
public justice and judicial administration
A second trial will accord with the ends of public justice and proper
judicial administration. See Loyal, 164 N.J. at 437. The judge found—and we
agree—there was "an urgent need to discontinue the trial . . . to safeguard the
defendants from any prejudice stemming from the delay and to protect the ends
of public justice, as the totality of the circumstances of the continued
suspension have only eroded and will continue to erode the prospects of a fair
and just result in this trial." We agree with defendant Cousins that the March
2020 suspension was consistent with the public interest in protecting the
participants from COVID-19. Seven months later, a continued suspension of
the trial to an indeterminate date in the future will violate "the right of society
to have its trial processes applied fully and fairly in the due administration of
the criminal law[.]" Farmer, 48 N.J. at 175. Furthermore, defendants will be
better prepared for retrial because they now have the benefit of knowing the
testimony from the witnesses who testified for the State.
(v)
Any other relevant factor under the unique facts the case
A mistrial has been justified based on "manifest necessity" where, as i n
this case, there was an unexpected indefinite or lengthy mid-trial delay that
A-0838-20T4
35
would affect the jury's recollection and assessment of credibility. For
example, in State v. Mendoza, 305 N.W.2d 166, 170 (Wis. Ct. App. 1981), the
appellate court found that the trial judge's sua sponte declaration of a mistrial
was justified under the "manifest necessity" standard where a juror was
unavailable for an indefinite period due to illness. See United States v.
Brandner, 90 F. Supp. 3d 883, 887-88 (D. Alaska 2015) (declaring a mistrial
after defense counsel's unanticipated and serious illness resulted in a four-
month delay in the midst of trial); Commonwealth v. Robson, 337 A.2d 573,
576-78 (Pa. 1975) (affirming the termination of trial based on "manifest
necessity" where the trial judge's illness suspended—and prevented the
continuation of—trial for several weeks).
Defendants argue that, like in Georges and Love, the judge rendered his
mistrial declaration in haste. However, he allowed the suspension to endure
for seven months, and only then did he conduct numerous status conferences,
hear oral argument, and issue a comprehensive oral decision. At the time the
judge declared the mistrial, the trial had been suspended as a result of the
COVID-19 pandemic, with no end in sight.
As the judge found, even if the trial could have resumed in October 2020
and a sufficient number of the existing jurors were still available, he had "great
concern" as to whether the jury would be able to consider the evidence fairly
A-0838-20T4
36
after the lengthy delay. The jury would have to consider the testimony of the
twenty-nine witnesses who testified in February and March 2020, and the
testimony of any additional witnesses to be called by the State or the defense.
That would be very difficult, even with the option of playback, because—as he
found—playback "would occur many months removed from when the jurors
actually had the opportunity to listen to the testimony, view the evidence and
do that in conjunction with an assessment and evaluation of the demeanor of
the witnesses." We will not second guess the judge's findings, especially since
he presided over the commencement of the trial and was in the best position to
fairly assess the situation that existed at the beginning of the case and
thereafter.
This case is also distinguishable from Leonard, on which defendant
Cousins relies. In that case the defendant was tried in municipal court on a
driving while under the influence charge. Leonard, 234 N.J. Super. at 184. On
the first day of trial, the State presented the testimony of its primary witness, a
former municipal police officer, who had responded to the scene of the
accident. Id. at 185. The trial judge adjourned the trial at the conclusion of
the witness's direct and cross-examination testimony, subject to recall by the
State for continued testimony. Ibid. The witness did not appear when the trial
resumed four months later, and the trial judge discovered that a transcript of
A-0838-20T4
37
the witness's testimony could not be prepared due to a tape malfunction. Ibid.The trial judge sua sponte declared a mistrial over the defendant's counsel's
objections because four months had passed since the hearing date. Ibid. We
concluded that under those circumstances, the defendant was entitled "to have
the [trial] judge decide his guilt or innocence without giving the State the
opportunity to start anew." Id. at 190-91. We held that under the "totality of
facts," including the missing transcript and absent witness, that "defendant
could not be retried as a result of the trial judge's inappropriate exercise of
discretion." Id. at 191-92.
In Leonard we explained that although there was a deficiency in the
record, the Law Division could have either supplemented the record on appeal
or conducted a plenary trial. Id. at 190-91. Here, rather than being prompted
by a deficiency in the record, the declaration of the mistrial was justified by
the unique circumstances of this case coupled with the pandemic. Moreover,
although the we did not consider the length of the delay in making our
determination, we noted that "a delay during any trial of four months is
inexcusable and affects the fact finder's recollection and assessment of
credibility." Id. at 190 n.4. Certainly here, as the judge found, the entirely
unexpected seven-month delay caused by the COVID-19 pandemic created a
"manifest necessity" for the declaration of a mistrial because it affected the
A-0838-20T4
38
juror's ability to recall the testimony of the twenty-nine witnesses who had
testified.
We reject defendants' additional argument that the trial judge was
without authority to declare a mistrial. Our Court set forth a plan "to limit
physical interactions in our courts to the greatest extent possible and shift to
use video and phone conferencing options for attorneys, litigants, and the
public." See Notice New Jersey Court Operations–COVID-19 Coronavirus:
Rescheduling of In-Court Proceedings Scheduled for the Week Beginning
Monday, March 16, 2020; Continuation of All Critical Functions 1 (March 15,
2020). Thus, although jury trials were suspended, court operations, including
motions, continued with or without consent, albeit virtually. In fact, in this
case, the judge conducted several status conferences. Thereafter, by order
issued on June 22, 2020, our Court authorized ongoing jury trials that had been
suspended to resume "consistent with public health precautions with the
consent of all parties[.]" Fourth Omnibus Order 1.
Throughout this period, New Jersey courts have continued to sustain
court operations to the greatest extent possible. At no point did our Court
order that all motions, including motions for a mistrial, were suspended and
thus the judge's authority was not circumscribed. In fact, in its latest order
dated November 16, 2020, our Court suspended in-person jury trials, but not
A-0838-20T4
39
all court operations, and specifically provided that judge's "in any individual
matter consistent with Rule 1:1-2(a)" could "suspend proceedings, extend
discovery or other deadlines, or otherwise accommodate the legitimate needs
of parties, attorneys, and others in the interests of justice[.]" See November
16, 2020 Suspension 6. Thus, the judge had the authority to declare a mistrial
in a case that had been suspended on March 17, 2020, and that had not
resumed seven months later due to the pandemic.
To summarize, we conclude that the judge did not abuse his discretion
by determining the extraordinarily unique circumstances of this case created a
manifest necessity for a mistrial, and by holding "the ends of justice . . . cannot
be achieved without aborting the trial[.]" Farmer, 48 N.J. at 171. An entirely
"unexpected, untoward and undesigned incident or circumstance" arose in the
form of the COVID-19 pandemic that did "not bespeak bad faith, inexcusable
neglect or inadvertence or oppressive conduct on the part of the State, but
which in the considered judgment of the trial [judge] create[ed] an urgent need
to discontinue the trial in order to safeguard the defendant against real or
apparent prejudice[.]" Id. at 174. As in Farmer, there was no doubt that the
judge's primary motive for declaring the mistrial was his sincere effort to
protect defendants. Id. at 175. And that is exactly what the judge did here.
Thus, double jeopardy would not be violated by a retrial because, under
A-0838-20T4
40
N.J.S.A. 2C:1-9(d)(3), the termination was "required by a sufficient legal
reason and a manifest or absolute or overriding necessity."
Affirmed.
A-0838-20T4
41