Skip navigation
The Habeas Citebook Ineffective Counsel - Header
× You have 2 more free articles available this month. Subscribe today.

Montana Supreme Court: Court Reporter’s Medical Emergency and Judge’s Distress Don’t Constitute Manifest Necessity for Declaring Mistrial, Retrial Violates Double Jeopardy

The Supreme Court of Montana dismissed with prejudice charges of sexual intercourse without consent and bail jumping, ruling the defendant’s second trial following a mistrial that was declared without a showing of manifest necessity was barred by the Double Jeopardy Clauses of the U.S. and Montana Constitutions.

Malcolm Joseph Newrobe, Sr., was initially charged with incest, pursuant to MCA § 45-5-507, for allegedly engaging in sexual intercourse with his 16-year-old niece V.B. Newrobe failed to appear at his scheduled trial on September 18, 2017, and an arrest warrant was issued. He was arrested on January 22, 2018, and the State amended the charges to include bail jumping.

Trial commenced on December 10, 2018. A jury was impaneled, and the State presented its witnesses. V.B testified that Newrobe was her mother’s brother and that he was at her home when he pushed her down on her brother’s bed and had sexual intercourse with her.

On the second day of trial, the court informed the parties that the comments to the incest statute indicate that incest does not include an uncle-niece relationship. (The Criminal Law Commission Comments to MCA § 45-5-507 state: “This section is patterned after the Model Penal Code. The uncle-aunt-nephew-niece cases are excluded from ‘felonious incest,’ in view of the severity of the penalty.”) The trial court agreed to discuss the matter further the next morning.

But the next morning, the district judge informed the parties that an hour earlier his court reporter had suffered a heart attack and was at the hospital. The judge was distraught, having previously witnessed his father have a heart attack. Based on the lack of a court reporter and “these personal and professional circumstances,” the district court found “the manifest necessity standard [wa]s met to grant a mistrial.”

Defense counsel objected, arguing that the State could not prove the elements of incest. Counsel asked for a continuance because most of the trial had been completed, and only two forensic witnesses remained to testify.

The court ordered a mistrial and rescheduled trial for January 9, 2019. Prior to trial, the State filed an amended information changing the incest charge to sexual intercourse without consent. Defense counsel filed a motion asserting that a second trial would violate double jeopardy protections. The district court denied the defense motion. At the ensuing trial, Newrobe was found guilty and appealed, arguing, inter alia, his second trial violated the Double Jeopardy Clauses of the U.S. and Montana Constitutions.

The Montana Supreme Court observed “[t]he Fifth Amendment of the United States Constitution and Article II, Section 25, of the Montana Constitution, protect citizens from being placed twice in jeopardy for the same offense.” The Court explained that “[d]uring a jury trial, jeopardy attaches as soon as the jury is impaneled and sworn.” City of Billings ex rel. Huerta v. Billings Mun. Court, 404 P.3d 709 (Mont. 2017). “When a mistrial is declared after jeopardy attaches, the defendant’s valued right to have his trial completed by a particular tribunal is also implicated.” Id. Once jeopardy attaches and a mistrial is declared, a “second criminal trial is barred unless there was manifest necessity to terminate the trial or the defendant acquiesced in the termination.” Id. A mistrial is an exceptional remedy and sufficient manifest necessity in the double jeopardy context requires a high degree of necessity. Id. The Court explained that the strictest scrutiny is appropriate when there is reason to believe the mistrial was to enable the prosecutor to use the superior resources of the State to harass or to achieve a tactical advantage over the accused. Arizona v. Washington, 434 U.S. 497 (1978).

In the instant case, the temporary unavailability of a court reporter together with the emotional impact on the judge did not demonstrate manifest necessity to declare a mistrial, the Court determined. A continuance as requested by the defense would have been sufficient remedy. Further, the Court noted that the mistrial gave the State a tactical advantage over the defendant, i.e., discovering it could not prove the relationship element of the incest statute. The only two remaining witnesses were forensic scientists whose testimony could do nothing to remedy this fatal deficiency to the State’s case, according to the Court. The State amended the charge to an entirely different offense—sexual intercourse without consent—prior to the second trial, using the mistrial to gain a tactical advantage. Thus, the Court concluded the district court abused its discretion in declaring a mistrial and ruled Newrobe’s second trial violated his federal and state double jeopardy rights.

Accordingly, the Court dismissed Newrobe’s convictions with prejudice. See: State v. Newrobe, 485 P.3d 1240 (Mont. 2021). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

State v. Newrobe



Disciplinary Self-Help Litigation Manual - Side
PLN Subscribe Now Ad 450x450
CLN Subscribe Now Ad 450x600