Mark J. Dinkel won in In re Bowman, No. 119,270 (Kan. May 17, 2019), obtaining a writ of habeas corpus for a client in a Saline County rape and aggravated criminal sodomy prosecution. This case involved a first trial which ended in a mistrial when the alleged victim, a young child, would not take the oath required for witnesses. Prior to a second trial, Mr. Bowman sought relief from the KSC, claiming that a second trial would violate the Double Jeopardy Clause and K.S.A. 21-5110.
The KSC detailed the efforts in the first trial to get the child witness to take the oath and the district court's conclusion that she was not likely to do so. The state indicated that without the witness' testimony it could not continue with the trial; it had already made several statements during its opening statement referring to the anticipated testimony and other witnesses had testified regarding her out-of-court statements, which would be rendered inadmissible hearsay. Noting that jeopardy had attached, defense counsel asked that the matter be dismissed. The state asked for a mistrial, which after extensive argument, the district court granted. The district court granted a mistrial because it believed it was "physically impossible to proceed with the trial in conformity with law" and because "[p]rejudical conduct in the courtroom, [made] it impossible to proceed with the trial without injustice to either the defendant or the prosecution." The latter stemmed from the district court's accidentally leaving on a microphone so that the child witness could hear the parties arguments. As such, the district court held that manifest necessity required a mistrial and therefore, that retrial would not violate the Double Jeopardy Clause.
First, the KSC acknowledged that an original action was appropriate to bring the double jeopardy (constitutional or statutory) claim to the appellate court because part of double jeopardy protection under either \s to not have to go through a second trial. As a result, a later appeal would not be a complete remedy.
On the merits, the KSC reviewed K.S.A. 22-3423, the mistrial statute in Kansas, and concluded that the child witness' refusal to take the oath did not render it "physically impossible" to proceed with trial:
Giving the common words in the phrase "physically impossible" their ordinary meaning, failure of even a critical portion of the State's proof because of a recalcitrant witness of any age and for any reason does not make trial a physical impossibility. The child's refusal to take the oath certainly made it more difficult for the State to obtain a conviction on the rape and sodomy counts in the same way it is harder for any lawyer to obtain a desired result when evidence heralded in earlier testimony or the lawyer's own opening statement fails to materialize.
In addition, the circumstances of Bowman's case also did not meet the subsection (1)(a) requirement that any continuation of the trial would not be in conformity with the law. Although the judge was correct that the child's inability to testify meant that at least some of the testimony he had admitted earlier over defense counsel's objection could not be considered by the jury on any count, jurors could have been instructed to disregard it. And jurors, as defense counsel observed, are routinely instructed that the statements of counsel, such as those in the prosecutor's opening, are not evidence in and of themselves. This means that it was within the judge's power to neutralize the ill effects to either party from the collapse of the prosecutor's trial strategy.
Likewise, the KSC majority held that the district court's accidentally leaving on its microphone did not make it "impossible to proceed with the trial without injustice to either the defendant or the prosecution":
The first problem with this argument is that the district judge's expressed concern, on the record before us, qualifies as mere conjecture. No sworn testimony or other evidence exists to demonstrate that the child heard or understood any of what was said during the bench conference or that whatever she heard or understood caused her to leave the witness stand or rebuff the court reporter's second series of efforts to administer the oath.
The second problem is that, even if we assume that the child accidentally overheard the bench conference and did understand counsel's arguments to be prompted by her behavior and, as a result, refused again to take the oath, the State faces the same difficulty in relying on subsection (1)(c) that it faced in relying on subsection (1)(a). It simply was not "impossible," as that common word is ordinarily understood, to proceed with the trial "without injustice to either the defendant or the prosecution."
Continuing the trial would not have led to injustice to Bowman. We must remember that Bowman opposed the mistrial; he wanted to continue and take his chances on the proof the State was ultimately able to muster. Rather than starting over with a new jury, Bowman wanted the judge to attempt to cure any prejudice arising from the earlier admission of hearsay testimony and the prosecutor's opening statement. Had the judge made reasonable efforts along those lines, and Bowman been convicted, the defense could not have complained successfully on appeal that the hearsay or opening statement were so harmful that Bowman deserved a reversal. Bowman and his counsel would have invited any error in failing to grant a mistrial. They would be stuck with the consequences of the risk they embraced.
The KSC majority held that the trial was terminated without the consent of the defendant and did not fall within any exception to statutory double jeopardy protections found in K.S.A. 21-5110. The KSC rejected the state's claim that it was impossible to proceed to a jury verdict and, therefore, granted the writ of habeas corpus and ordered that Mr. Bowman be release and discharged from further liability.
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