Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy.
Troka was charged with attempted homicide, strangulation or suffocation, battery and other charges for an attack on A.Z. At trial the state called two medical experts—the ER physician and a sexual assault nurse examiner. Troka called three experts—the radiologist who did a CT scan of A.Z.’s neck; the physician who did an ear, nose, and throat examination of A.Z; and a physician (Richard Tovar) who hadn’t examined A.Z. but could opine on the nature and cause of A.Z.’s injuries based on his review of the medical records. Troka’s first two witnesses provided helpful testimony, but Tovar didn’t get very far before the state objected to his testimony because the defense hadn’t turned over a summary of his testimony. The trial court sustained the objection. (¶¶2-7).
After a break, Troka’s lawyers told the court they had “strategically” decided to withdraw Tovar and proceed with the evidence they had already presented. The state then moved for a mistrial, arguing that despite trial counsel’s claim Tovar’s testimony wasn’t needed, proceeding with the trial gave Troka a winning appellate issue if he were to be convicted—namely, that his trial lawyers were ineffective for failing to turn over a summary of Tovar’s testimony and thus depriving him of a critical defense witness. The court granted a mistrial over Troka’s objections, and then denied Troka’s subsequent motion to dismiss on the ground there wasn’t manifest necessity for the mistrial and therefore retrial would violate double jeopardy. (¶¶8-10).
Mistrial should be granted over the defendant’s objection only for plain and obvious reasons, when there is a high degree of necessity, State v. Mattox, 2006 WI App 110, ¶13, 293 Wis. 2d 840, 718 N.W.2d 281. The court of appeals holds the record doesn’t demonstrate manifest necessity for a mistrial in this case because the trial court had insufficient reason to question trial counsel’s clearly stated position that Tovar’s testimony wasn’t needed and that proceeding without it was an appropriate way to avoid mistrial. (¶23).
To prove that trial counsel saw Tovar’s testimony as important to the defense, the state and the trial court pointed to trial counsel’s pretrial statements about the testimony it was anticipating from all three experts. (¶¶20-21, 24, 26). But this ignores trial counsel’s unambiguous statement at trial, after having presented the testimony of two of the three experts, that Tovar was not that important to the defense. (¶¶25, 27). In addition, the record doesn’t establish that Tovar’s testimony was critical, as the trial court didn’t ask for an offer of proof as to Tovar’s testimony to gauge whether it was more important than trial counsel realized. (¶29). Tovar is experienced and well-credentialed, but it is pure speculation to assert, as the state does, that he must have had something important to say that would have helped the defense. (¶31). Thus:
¶32 …[W]hile the circuit court was presented with the possibility, based on defense counsel’s pretrial statements about consulting with Tovar, that Tovar might end up having critical testimony for the defense, we must proceed based on the record as it exists at the time of trial. As we have explained, that record does not adequately support the circuit court’s, or the State’s, reliance on the mere possibility of Troka having a successful ineffective assistance of counsel argument on appeal of a conviction, in order to find a manifest necessity for a mistrial. Because there was no manifest necessity for a mistrial, a second trial would violate Troka’s right to proceed with his original jury. Therefore, Troka’s motion to dismiss should have been granted. ….
The court briefly discusses, but doesn’t decide, what level of deference to apply to the circuit court’s mistrial decision. The level of deference depends on the facts (e.g., a mistrial based on a hung jury is given great deference, one based on the state’s failure to have witnesses ready to go is given the strictest scrutiny), but here the court concludes that regardless of the level of scrutiny, the record doesn’t support the mistrial decision, so the trial judge erroneously exercised his discretion in granting a mistrial. (¶¶17-19).