Reuters: Bronx man cannot be retried after mistrial

A Bronx man cannot be retried for selling drugs after his first case ended in a mistrial because the judge failed to consider less severe alternatives, a state appeals court ruled Thursday.

The Appellate Division, First Department, found that double jeopardy precluded a second prosecution against Jamal Morris, who sought a writ prohibiting the Bronx district attorney’s office from retrying him.

“We grant the application because there was no manifest necessity for a mistrial,” Justice Helen Freedman wrote for a unanimous panel.

Morris was charged in 2010 with criminal sale of a controlled substance and criminal sale of a controlled substance in or near a school.

During Morris’s 2012 trial, prosecutors called several witnesses, including the arresting officer, Detective Leslie Gauvin, according to the ruling.

Morris’s defense attorney requested permission to question Gauvin about allegations of false arrest brought against Morris in an unrelated case that resulted in a lawsuit.

Bronx Supreme Court Justice Leonard Livote granted the motion but said the attorney could not mention the lawsuit itself or the subsequent settlement.

Despite the judge’s instructions, the defense attorney, who was not named in the ruling, repeatedly asked Gauvin about the lawsuit and the settlement. After the judge sustained several prosecution objections, prosecutors moved for a mistrial, which Livote granted over the defense’s objection.

Livote concluded that jurors would have to perform “mental gymnastics” to disregard the references to the lawsuit, according to Thursday’s ruling. Morris then filed an Article 78 petition arguing that he should not be subject to a second trial.

The Appellate Division agreed, ruling that Livote could have chosen other alternatives, such as polling the jury to ask whether they could remain impartial or giving them curative instructions.

“Although defense counsel’s disregard of the court’s instructions was blameworthy and understandably angered the court, the cross-examination did not rise to the level of the gross misconduct displayed in cases in which retrial was permitted,” Freedman said.

The Bronx Defenders, which represented Morris on appeal, and the Bronx district attorney’s office did not respond to requests for comment.

The state attorney general’s office, which represented Livote, the nominal defendant, in the Article 78 petition, also did not respond to a request for comment.

The case is Matter of Morris v. Livote, New York State Supreme Court, Appellate Division, First Department, No. 9012-5107.

For Morris: Marika Meis, Adeola Ogunkeyede and John Vang of the Bronx Defenders.

For Livote: Susan Anspach of the New York attorney general’s office.

For the prosecution: Assistant district attorneys Tammy Vadasz and Breanne Smith for the Bronx district attorney’s office.