Must a Court dismiss after 3 mistrials?

Posted by on February 10, 2016 in Uncategorized | 0 comments

Must a Court dismiss after 3 mistrials?

Must a Court dismiss after 3 mistrials?

One, two, THREE wonderful mistrials!  This question from the January 11 Court of Appeal decision People v. Verducci (243 Cal.App.4th 952) is fitting since we just passed Groundhog’s Day (“Ned… Ryerson. ‘Needlenose Ned?’ ‘Ned the Head?’ C’mon, buddy.”).

Defendant was convicted of murder after juries deadlocked after the first 3 trials.  Let’s take a look at the scoreboards.  Trial One, 8 for guilt.  Trial Two, 11 for guilt.  Trial Three, only 3 for guilt.  Defendant claims Double Jeopardy and Due Process rights were violated, and the Court says nope.  “Double Jeopardy clause bars prosecution following a defendant’s acquittal.”  But not necessarily with a hung jury.

Defendant also argues the Court should have dismissed per its power under Penal Code 1385, which allows the Court to dismiss in the “furtherance of justice.”  With 1385, Courts must consider the constitutional rights of Defendant and the interests of society represented by the People.  Also, “at the very least, the reason for dismissal must be ‘that which would motivate a reasonable judge.’”

This is a new issue, as Cali Courts have “not addressed whether successive trials after jury deadlock that do not violate double jeopardy principles may still violate a defendant’s due process rights.”  Ultimately the Court decides it does not violate Double Jeopardy.

“A determination whether to dismiss in the interests of justice after a verdict involves a balancing of many factors, including the weighing of the evidence indicative of guilt or innocence, the nature of the crime involved, the fact that the defendant has or has not been incarcerated in prison awaiting trial and the length of such incarceration, the possible harassment and burdens imposed upon the defendant by a retrial, and the likelihood, if any, that additional evidence will be presented upon a retrial. When the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice.”

Even though there were 3 trials, the Court here backed the Trial Court, since they had better seats to evaluate all the evidence.  “We will not second guess the trial court’s ruling, which found particularly relevant the strength of the People’s evidence, the seriousness of the charges, and the limited prejudice to Verducci of a fourth trial.”


About the author, San Diego DUI lawyer Eric Ganci:


I am an owner and DUI lawyer in San Diego with my own firm Ganci, Esq., A Professional Corporation.  I am trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests.  I have authored Thomson West Publications regarding DUI science and law, and am a founding member of the DUI Lawyers Association, a national group.  

I am recognized, after completing the required coursework and passing the certification exam, as a Lawyer-Scientist by the American Chemical Society, Chemistry and the Law division.  I have been fortunate to be awarded many other awards, and  you can see my full bio here.

I received my JD from Thomas Jefferson School of Law, my BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.

I have offices in San Diego and Vista (North County San Diego), and I represent persons arrested for DUI in all counties in San Diego.

On the side, I am a drummer with my San Diego live band karaoke group, Rock Out Karaoke, and have earned several musical accomplishments, such as opening for Anthrax and having Ving Rhames say “I like your band’s cd.”

Also, per California Rules of Professional Conduct, I must say this blog may be seen as a solicitation.  Although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer

Ganci Esq., APC

Cell: 760-216-4941


Fax: 888-241-5887


Downtown office:

110 West C St, Ste 712

San Diego CA 92101


North County office:

950 Vista Village Dr

Vista, CA 92084


Be Sociable, Share!
    Eric Ganci

    Leave a Comment

    Your email address will not be published. Required fields are marked *