People v. Cooper

I concur in the majority view that trial errors require a new trial. But I dissent from the majority view that the judge’s action in declaring a mistrial and the defendant’s subsequent trial did not violate the constitutional provision against double jeopardy. For that reason I would reverse the defendant’s conviction.

The rule governing the right to retry a defendant in a criminal case after a mistrial had been declared was set forth 167 years ago in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165. The Supreme Court warned:

“[T]he power ought to be used with the greatest…