Capital murder double-jeopardy appeal

If a defendant charged with capital murder is not arraigned until halfway through his trial, it is not double jeopardy. By the author's definition, jeopardy does not “attach” until a defendant has been arraigned. If the defendant had not yet been arraigned then arraignment mid-trial cannot be considered to constitute double jeopardy.

Other authority will claim that the concept works a different way – that double jeopardy attaches and then magically disappears. This approach seems to support the principle that constitutional rights can be violated as long as there is a “quick fix”. It is clear that arraignment is the way jeopardy attaches.

There are waiver of arraignment forms in most jurisdictions that clarify when arraignment may be waived. Short of this, claiming that jeopardy attaches irregardless at the beginning of a capital murder trial is dangerous in that it treads on the toes of the defendants constitutional rights, established by the Supreme Court, the Congress, and the people.

Courts have a responsibility to ensure that these rights are protected when appropriate and securing a clear answer on waiver of arraignment, like any step in a criminal case, is more important in a capital case where the life of the defendant is at stake. A courts failure to secure a waiver of arraignment before trial prevents it from claiming the defense attorney is seeking a mistrial for purposes of delay.

A capital murder case provides an opportunity for all court officials (lawyers included) to become great students of the constitution and to study and understand the rights and protections involved. Regardless of your opinion on the death penalty, surely we all agree that the protections put in place over time to ensure innocent people are not put to death are of the utmost importance during a capital case.

At the time of this case, I was clerking for Montgomery attorney Aimee Smith. In drafting language for the appellant’s brief to the Alabama Court of Criminal Appeals, I argued that a capital trial is no place to experiment with the legal process where arraignment comes mid-trial and a judge’s “offer” of mistrial is rejected. In a capital case, a mistrial offered should be a mistrial declared. If there is a fundamental flaw in the trial so that the offer could be presented, then the offer should not be an offer at all but a declaration.

The more difficult question, however, is if the judge offers a mistrial and the appointed defense attorney rejects the offer, does that constitute ineffective assistance of counsel for purposes of appeal? Now that's a good question.

Jason Dial, Attorney
jason@diallawfirm.com

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