Results 1 to 9 of 9
  1. #1
    Join Date
    Sep 2007
    Posts
    3

    Default What Are The D.A.'s Options After a Mistrial

    My brother was arrested three years ago this Thanksgiving for allegedly, digitally penetrating the sexual organ of his step daughter. (My brother is divorcing his wife and she convinced the child to tell this lie so my brother will never see his biological child again and so far--it's worked for three years--no physical evidence at all of any abuse) He was indicted in Texas for Aggravated Sexual Assault in February of 2005. That indictment was dismissed without prejudiced in December of 2006. My Brother was re-indicted in February of 2007 on the lesser charge of indecency with a child (still a felony) as the alleged victim has changed her story and now denies penetration and says only touching occurred.
    My brother went to trial in June of 2007 and a mistrial was declared as, after a day and one half, the jury was hung. The alleged victim is 14, so my understanding is that the statute of limitations is an additional 14 years. The stress of this situation caused my father's massive, fatal heart attack and my mother is in bad health as well. It has bankrupted my family and we've not seen my niece for three years now.

    What are the District Attorney's options after a mistrial in such a case? Can he just continue to try my brother for the next 14 years if he so chooses? What are our options, if any, in such a situation? We've hired many lawyers who simply take our money and run and when they've been grieved, the attorney grievance commission in Texas rushes to dismiss the grievances before all of the responses are even in. Please help. Any advice would be appreciated.

  2. #2
    Join Date
    Aug 2007
    Posts
    3,837

    Default Re: Texas Horror

    Quote Quoting jameseric
    View Post


    snip

    What are the District Attorney's options after a mistrial in such a case? Can he just continue to try my brother for the next 14 years if he so chooses? What are our options, if any, in such a situation?

    Although there is no exact # a person can be tried due to a hung jury or mistrial, eventually the Constitutional provision of Double jeopardy is triggered.

    In other words, a Prosecutor can't retry a defendant 10 times simply due to a hung jury. A DJ argument can be and surely will be granted.

    The charge is known, so the prosecutor simply can't sit around for 13 years and all of a sudden decide to file an Indictment.


    Other than this I don't know what else to say, maybe some others will join in.

  3. #3
    Join Date
    Sep 2007
    Posts
    3

    Default Re: What Are The D.A.'s Options After a Mistrial

    Does he have to re-file the indictment after a hung jury--or does the original indictment still stand?

  4. #4
    Join Date
    Jul 2006
    Posts
    5,438

    Default Re: What Are The D.A.'s Options After a Mistrial

    Quote Quoting jameseric
    View Post
    Does he have to re-file the indictment after a hung jury--or does the original indictment still stand?
    Re-file. It starts anew.

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    75,004

    Default Re: Texas Horror

    For mistrials resulting from hung juries, double jeopardy does not attach. Retrial is possible, although with each successive hung jury it becomes less and less likely for practical reasons.
    Quote Quoting jameseric
    View Post
    We've hired many lawyers who simply take our money and run and when they've been grieved....
    You find it odd that attorneys don't want to represent you any more after you file grievances against them?

  6. #6
    Join Date
    Aug 2007
    Posts
    3,837

    Default Re: Texas Horror

    Quote Quoting Mr. Knowitall
    View Post


    snipped

    For mistrials resulting from hung juries, double jeopardy does not attach. Retrial is possible, although with each successive hung jury it becomes less and less likely for practical reasons.
    It is my understanding DJ does attach after successive prosecutions which includes hung juries.

    II
    The Double Jeopardy Clause of the Fifth Amendment[Footnote 3] protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606 (1976). As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed by a (456 U.S. 667, 672)

    particular tribunal." Wade v. Hunter, 336 U.S. 684, 689 (1949).


    http://supreme.justia.com/us/456/667/case.html

    I will research further later.

  7. #7
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    75,004

    Default Re: Texas Horror

    For double jeopardy to apply, jeopardy has to attach. With a hung jury, the initial jeopardy that attaches to a charge is deemed suspended by the jury’s failure to reach a verdict.

  8. #8
    Join Date
    Sep 2007
    Posts
    3

    Default Re: What Are The D.A.'s Options After a Mistrial

    The issue here is not grieving the lawyers and not all of the lawyers were grieved. The guys who conducted the trial did a passable job up until the very end when they dropped the ball--but they at least earned their money--the entire $20,000. I'm not a criminal lawyer, but I am a lawyer and I do know what occurred with the lawyers hired previous to the trial was a DESPICABLE rip-off.

    Regardless, I would like to thank all for your insight. I sincerely appreciate it. Is it possible that someone could refer me to the legal authority that supports that the indictment has to be re-filed in Texas? Thanks again.

  9. #9
    Join Date
    Aug 2007
    Posts
    3,837

    Default Re: Texas Horror

    Quote Quoting Mr. Knowitall
    View Post
    For double jeopardy to apply, jeopardy has to attach. With a hung jury, the initial jeopardy that attaches to a charge is deemed suspended by the jury’s failure to reach a verdict.

    I agree here now. The Oregon case I cited ONLY deals with other types of mistrials, NOT hung juries, so I stand corrected.

    I knew I had read something before about multiple prosecutions after hung juries and it turns out after some more research it could be a possible Due Process violation, state and federal.

    The DJ clause does not forbid repeated prosecutions after hung juries, that is settled law, the DP clause may though. I had done some research on that some years ago and related it here to DJ instead of DP.

    From what I found, no jurisdiction permitted more than 4 retrials after hung juries based on fairness and DP.

    1. Sponsored Links
       

Similar Threads

  1. Hearings and Trials: At Arraignment, Prosecutor Told Me I Can Make Deal or Wait for "Mistrial"
    By kvothe in forum Traffic Court
    Replies: 3
    Last Post: 08-11-2011, 10:21 PM
  2. Trials: Grounds for a Mistrial
    By on the edge in forum Criminal Procedure
    Replies: 4
    Last Post: 10-13-2010, 10:46 AM
  3. What Are My Options
    By Alunirra in forum Juvenile Law
    Replies: 7
    Last Post: 09-22-2010, 06:45 PM
  4. Guardianship: Any Options?
    By foxrider in forum Guardianship and Conservatorship
    Replies: 4
    Last Post: 10-18-2008, 07:18 PM
  5. Emancipation: I Need Options
    By confused1508 in forum Juvenile Law
    Replies: 14
    Last Post: 05-18-2007, 06:29 PM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
 
Forum Sponsor
Criminal Defense Attorney
Protect your freedom. Consult a criminal defense lawyer for free.




Untitled Document