A defendant’s rights against double jeopardy were not violated by the scheduling of a second trial after a mistrial, a Brooklyn appeals court has ruled. "The mere declaration of a mistrial does not terminate a criminal trial and thereby divest the trial court of the authority to rescind the declaration," the Appellate Division, Second Department, wrote on May 22 in Gorman v. Rice, 8279/10. The panel unanimously reversed a lower court’s order barring retrial for a woman facing drunken-driving charges.
In 2009, Nassau County District Court Judge Robert Spergel (See Profile) declared a mistrial in Catherine Gorman’s case after her attorney, Harry H. Kutner Jr. of Mineola, questioned the judge’s "pro-prosecution bias." After a short recess, Spergel rescinded his action but asked the defense if it wanted him to stay on the case and the defense said it would opt for a mistrial, which Spergel granted. With the case then assigned to another judge, Gorman unsuccessfully moved for dismissal on double jeopardy grounds. She then filed an Article 78 petition to block retrial.
