NH Supreme Court - Double Jeopardy and the Iraq War

In State v. Solomon, 943 A.2d 819 (Mar. 20, 2008), Attorney Ted Lothstein persuaded the New Hampshire Supreme Court that the trial court violated Solomon's right against double jeopardy under the New Hampshire Constitution by attempting, without manifest necessity, a mid-trial substitution of judges in a bench trial. Ted Lothstein briefed and argued this case before the state's highest Court. News of this decision was published in the National Criminal Law Reporter, and received substantial local coverage, such as in the Concord Monitor and the Lawrence (Massachusetts) Eagle-Tribune.

Solomon, charged with simple assault, began his bench trial before Derry District Court's Judge Coughlin. In the middle of the alleged victim's testimony, a legal issue caused a continuance, and then another continuance.

While waiting for the next court date, trial counsel opened his Bar News... and surprise! Judge Coughlin, a member of the National Guard, had departed for Iraq. Coughlin had requested another tour of duty there, by letter waiving his right to a 30 day notification period to settle his affairs.

Judge Stephen of the Derry District Court offered to start again or pick up where Coughlin left off, but trial counsel argued that Solomon's double jeopardy rights required completion of trial before the tribunal that started the trial - not just any judge, but Judge Coughlin. Judge Stephen declared a mistrial, over Solomon's objection that there was no manifest necessity under all the circumstances.

The New Hampshire Supreme Court agreed, primarily on the basis that the record did not show any attempt by Coughlin to notify the parties of his impending departure and attempt to bring the trial to completion. Thus, there was no manifest necessity to declare a mistrial, because the circumstances that brought about the tribunal's unavailability were not unavoidable.

That being said, its hard to fault Coughlin, not only because he did what he did for an "admirable" purpose as the Court put it, but because before this decision there was absolutely no law in NH.. and very little law anywhere else... regarding the double jeopardy right as applied in a bench trial.

Can judges hand off the baton like a relay race when trial becomes inconvenient for the first judge? A couple of courts have said yes, but most have said no, and now the New Hampshire Supreme Court joins them, determining that the following quotation from LaFave applies to judges just as it applies to juries:

"Every jury has its own character and the initial jury may be more favorably disposed to the defendant than the next jury."

Of course, those of us who practice in District Court... and pray for our case to be specially assigned to a particular judge... couldn't agree more! Read State v. Solomon