In State v. Stephen A. Zadroga (A-22-22/087156) (Decided August 9, 2023), the Supreme Court of New Jersey held that double jeopardy did not bar the retrial of defendant Stephen A. Zadroga. In reaching its decision, the court declined to adopt a per se rule that whenever a mistrial follows the State’s bad faith or inexcusable neglect, retrial is barred on all counts.
Facts of State v. Zadroga
In November 2017, two cars collided head-on in Jersey City. Defendant Stephen A. Zadroga (Defendant) was driving 85-88 miles per hour 3 seconds before the crash; the posted speed limit was 25. In addition to witnesses’ statements about the speed at which the Defendant was driving, there was evidence that his car was over the yellow lines, into opposing traffic, at the time of the collision. Defendant’s best friend died in the crash.
Pursuant to a warrant, the State seized and tested what they thought was the Defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, more than four times the legal limit. Relying on that evidence, the grand jury charged defendant with aggravated manslaughter, death by auto, and three counts of driving while intoxicated.
After the nurse who drew the Defendant’s blood testified for the State at trial, the State realized that the blood they believed to be defendant’s had actually come from a person who had died seven months before the accident. After the State discovered the error, the Defendant moved to dismiss the indictment with prejudice because the grand jury had relied on false testimony to indict him.
The trial court granted the Defendant’s motion as to the counts of driving while intoxicated but denied the motion as to counts one and two, aggravated manslaughter and death by auto. The court found that allowing the Defendant to be retried on the counts unrelated to intoxication would not violate his rights under the Double Jeopardy Clause both because he consented to the trial’s termination and because there was a manifest necessity to terminate the trial. The Appellate Division affirmed on manifest necessity grounds, adding that while the State could present counts one and two to a new grand jury, it could not present any evidence that the Defendant was under the influence of alcohol at the time of the collision.
Double Jeopardy
Double jeopardy prohibits different prosecutions for the same offense. The Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, protects defendants from repeated prosecutions for the same offense by guaranteeing that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The New Jersey Constitution has its own double jeopardy clause, providing that “[n]o person shall, after acquittal, be tried for the same offense.”
The U.S. Supreme Court has held that termination of a trial after jeopardy attaches does not necessarily prohibit subsequent re-prosecution. Rather, only the improper termination of proceedings bars retrial.
Pursuant to Oregon v. Kennedy, 456 U.S. 667, 672 (1982), there are two circumstances in which termination can be proper, and a retrial not barred by double jeopardy principles. First, where the defendant does not request or otherwise consent to a mistrial, termination is proper and there is no bar to retrial only if there is a “manifest necessity” to terminate the proceedings. The manifest necessity standard protects “the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining ‘the public’s interest in fair trials designed to end in just judgements.’”
Second, when the defendant requests or otherwise consents to a mistrial, manifest necessity need not be shown. Instead, under the federal Due Process Clause, termination is not improper and there is no bar to retrial as long as the prosecutor did not “‘goad’ the defendant into moving for a mistrial.”
NJ Supreme Court’s Decision in State v. Zadroga
The New Jersey Supreme Court affirmed. It held that the trial court did not abuse its discretion in finding manifest necessity justified a mistrial. It further agreed with the Appellate Division that the State can present the counts of aggravated manslaughter and death by auto to a new grand jury based solely on the reckless driving evidence, without any evidence on intoxication.
In reaching its decision, the New Jersey Supreme Court disagreed with the Defendant’s reading of State v. Farmer, 48 N.J. 145 (1966), to preclude a finding of manifest necessity if the State acted in bad faith or was guilty of inexcusable neglect. According to the court, four features of Farmer make clear that it did not categorically bar retrial even if there is a finding that the State’s conduct reflected bad faith or inexcusable neglect.
First, Farmer acknowledges that “there is no over-all formula, no hard and fast rule for determining when an order of mistrial will cause the jeopardy bar to spring into being, [and so] each case must depend upon its own facts and the urgency of its circumstances.” Second, Farmer emphasizes the “wide range of discretion” in finding a manifest necessity “recognized in the trial judge, who has his finger on the pulse of the proceedings.” Third, Farmer twice explains that appellate courts should not find an abuse of discretion where the trial court declares a mistrial to protect a defendant’s interests. Fourth, the Farmer Court acknowledged that a declaration of manifest necessity must balance “the right of the accused to be prosecuted fairly and not oppressively” against “the societal right to have the accused tried and punished if found guilty.”
The New Jersey Supreme Court went on to find that the trial court did not abuse its discretion in balancing those interests in this case. Among other factors, the court cited the trial judge based his decision not on a concern that the State would be prejudiced by continuing with the trial, but by a desire to avoid prejudicing the defendant by forcing him to continue with a trial when the grand jury may have based its decision to indict on false testimony, and when defendant therefore may not have been indicted at all without the BAC evidence.
The New Jersey Supreme Court also disagreed that allowing a retrial would confer any unfair advantage on the State. “We have previously held that the ‘essence to the doctrine of jeopardy’ is ‘that the State may not retreat from the field when its case turns sour and then be permitted to sally forth on a future day before a new jury when its case is refreshed and reinforced,’” Justice Rachel Wainer Apter wrote. “The State did no such thing here.” Because it found there was no abuse of discretion in finding the mistrial was supported by manifest necessity, the New Jersey Supreme Court did not reach whether the Defendant consented to the mistrial or his request to depart from the Kennedy standard in cases of consent.