State v. Otis G. Mattox, 2006 WI App 110
For Mattox: Scott D. Obernberger
Issue: Whether grant of mistrial over objection, after defense counsel was held in contempt for supposedly violating a court order with respect to questioning a witness, was manifestly necessary so as to permit retrial.
¶19 As noted, the chief concerns of the trial court in continuing the trial were the problems occasioned by Schnake being found in contempt, and the concern that charges of vindictiveness would be lodged against the trial court and the court would have to bend over backwards for Mattox’s attorney in order to avoid a charge of impartiality and unfairness. However, the trial court was mistaken about the contempt, and we have determined that any concern about its reputation did not constitute manifest necessity. Thus, we are left with only one conclusion—no manifest necessity existed requiring a mistrial over the objections of both the State and Mattox. Consequently, the trial court erroneously exercised its discretion in terminating the trial because the trial court erred as a matter of law in its finding of contempt, and no other stated reasons rose to the level of a manifest necessity. Under these circumstances, Mattox’s exercise of his constitutional rights prevents a retrial. Accordingly, we reverse.
 While we acknowledge that other reasons were proffered later by the trial court for its decision, we are satisfied that the analysis given at the time of the mistrial trumps later explanations, particularly when the new explanations contradict what was said at the time the mistrial was declared.
At the time mistrial was granted, the trial court gave four reasons, ¶8: Mattox would have an ineffectiveness claim, evidenced by counsel’s “contemptuous behavior”; the trial court otherwise would have to bend over backward to rule in Mattox’s favor, else risk being seen as vindictive; accusations of unfairness would reflect poorly on the court’s reputation; soldiering on wouldn’t be in anyone’s best interest. On the face of it, these reasons seem make-weight, but the court of appeals’ discussion makes the result more fact-specific than one might like:
¶15 … We are mindful that the trial court felt it was being placed in an awkward situation. However, the trial was close to a conclusion. The last of the State’s witnesses was on the stand when the mistrial was announced. It appears as though the only remaining witness was Mattox himself. The trial court could have easily completed the trial without having to “bend over backwards” for Mattox’s attorney or be exposed to a charge of vindictiveness. Indeed, while it may have been unpleasant to preside over the trial under the existing conditions, we cannot conclude that being perceived as “looking bad” is a manifest necessity. Although there is one sentence in the three pages of the transcript explaining the trial court’s decision to call a mistrial, where the trial court stated that the mistrial was in “Mattox’s best interest,” the trial court never explained why this was true.  Thus, our review of the record made at the time of the mistrial reveals no manifest necessity.
And, of course, the earlier reversal of the contempt finding kicked the legs out from under the mistrial. (Earlier, unpublished decision: Schnake v. Circuit Ct. for Milw. County, No. 04-2471, 5/17/05.) The court of appeals did reject (see fn. 8) the trial court’s months’-later rationalization that mistrial was necessary to avoid prejudice to Mattox. But to a large extent this rejection isn’t based on the idea that a trial court can’t come up with previously unexpressed notions, but rather that in this instance those notions were both unsupported in the record and also inconsistent with remarks made contemporaneous to the mistrial:
¶18 The trial court’s later statement that jury prejudice against Mattox resulting from his attorney’s conduct was the underpinning for the mistrial, is inconsistent with its contemporaneous statements. At the time the mistrial was ordered, there was no mention of the jury having been prejudiced by Schnake’s actions. We note that most of Schnake’s transgressions were done outside the jurors’ presence. Further, there is no evidence here supporting the trial court’s later conclusion. Unlike the situation existing in United States v. Spears, 89 F. Supp. 2d 891 (W.D. Mich. 2000), where the trial court sua spontedeclared a mistrial after the trial court noticed signs of juror exasperation with the defense attorney by “raising their eyes, shaking their heads negatively,” and individualvoir dire revealed bias against the defendant due to his counsel’s actions, see id. at 895, here we have no indication of juror bias. Indeed, the trial court commented at the time that, “[t]his case could very easily turn out to be an acquittal,” and earlier stated that “he may very well not get convicted….” Thus, it would appear that earlier, contrary to the court’s later comments, the trial court did not think that the jurors had been negatively influenced by Schnake’s behavior.
All of which is to say that the facts probably place this case at the margins of manifest necessity caselaw.