State v. Fitzpatrick

Annotate this Case

State v. Fitzpatrick (99-223); 172 Vt. 111; 772 A.2d 1093

[Filed 16-Mar-2001]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 99-223

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit

Paul Fitzpatrick December Term, 1999

Paul F. Hudson, J.

Dan M. Davis, Windham County State's Attorney, and James E. Maxwell, Deputy
State's Attorney, Brattleboro, for Plaintiff-Appellant.

Thomas Z. Zonay of Ford, Johnson & Zonay, P.C., Woodstock, for
Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J. Defendant Paul Fitzpatrick was charged with rape and
tried before two juries, both of which became deadlocked. After the
second mistrial, the trial court, upon motion of defendant, dismissed the
charges against defendant with prejudice, pursuant to Vermont Rule of
Criminal Procedure 48(b)(2). The State, which seeks to try defendant a
third time, appeals, claiming the court abused its discretion in
dismissing the charges. Defendant cross-appeals, arguing that because of
prosecutorial misconduct the court should have dismissed the case at the
beginning of the second trial. We affirm without reaching the
cross-appeal.

On September 4, 1996, according to testimony at the two trials, the
alleged victim met a

friend for dinner and drinks. The two women, who knew each other through
work, went to a restaurant at around 7:30 p.m. and stayed there for about
an hour and a half. They then went to a bar, where they were acquainted
with the owner and the bartender. At the bar they were approached by
defendant, who introduced himself, and asked them to play pool. The three
played pool together on and off, and struck up a conversation. At around
11:00 p.m., the alleged victim's friend decided to go home. The friend
tried several times to persuade the alleged victim to go with her, but she
refused to leave.

According to the alleged victim's testimony, she intended to finish
the beer she was drinking and then drive home. However, at that point
defendant approached her and said that he was having a party in his motel
room nearby and invited her to come along. Believing that several people
from the bar would be there, she accepted. When they arrived at the motel
room, they were alone. The alleged victim claimed that when she realized
there was no party and attempted to leave, defendant held her against her
will and raped her. She testified that he slapped her and bit the earrings
from her ears. She scratched his back with her fingernails, trying to
resist. Eventually, he fell asleep, and she left the room and called the
police to report the rape. The call was logged in at 3:31 a.m.

The police interviewed the alleged victim at the police station, and
then took her to the hospital to have a rape kit examination performed to
gather evidence. At about 7:00 a.m., the detective in charge of the
investigation knocked on the door of defendant's hotel room to question
him. Defendant admitted that a woman had been there, but said that
"nothing had happened."

According to defendant, it was the alleged victim who asked to come to
his motel room with him. He testified that while they were at the bar,
they began flirting with each other. They were

sitting at the bar together, talking, and she had her hand on his leg.
They decided they were going to go back to his room, and she asked, "How
do you want me to be for you?" When they got to his room, they began
kissing and fondling each other. The alleged victim took off her earrings
and placed them on the night stand. Defendant testified that, at one
point, she ran her fingernails down his back, causing him pain. When he
said that he did not like that, she asked again, "How do you want me to be
for you?" Defendant testified that he became uncomfortable with the
situation, and decided to ask her to leave. He asked her several times to
leave, but she kept saying that she wanted to stay. Finally, when he
insisted, she became upset and stormed out of the room, leaving the door
open as she left. He closed the door and went to sleep.

Defendant was charged with kidnapping, aggravated sexual assault and
simple assault. The case was tried before a jury in February 1998. At
the trial, the alleged victim and defendant both testified, as did several
police officers who were involved in the investigation, medical personnel
who performed the rape kit examination, two expert witnesses, and several
other fact witnesses. A motel guest testified that he heard a commotion
in another room during the night in question. He heard a loud male voice
that sounded upset and emotional, and then a sound like a child running
across a room and hitting a coffee table. The doctor who examined the
alleged victim at the hospital testified that she had scratches on her
lower back, and a long scratch on her left interior thigh, and that there
was a half centimeter fresh laceration in her perineum, but that no sperm
had been found in her urine or vaginal mucous. The expert witnesses
testified that there was saliva on one of the earrings the alleged victim
had left in defendant's room, and that there was a one in fifty chance it
came from defendant. There was also a one in fifty chance that DNA
material scraped from

underneath the alleged victim's fingernails came from defendant. On the
third day of trial, the jury became deadlocked, and a mistrial was
declared. The State claimed, and the trial court accepted, that the
jurors were eleven to one for conviction.

After the first mistrial, the charges were amended to unlawful
restraint, sexual assault, and simple assault, and the case was tried to a
second jury in January 1999. Essentially the same witnesses testified,
and the same medical and expert DNA evidence was presented. Another hung
jury resulted, and the court declared a mistrial. Based on the State's
representation, the court found that the vote of the jurors was six for
conviction and six for acquittal. Thereafter, defendant filed his motion
to dismiss the prosecution with prejudice under V.R.Cr.P. 48(b)(2).

After hearing evidence and argument on the motion, the court, in a
twenty-four page opinion, granted it, based on its evaluation of the
factors set out in State v. Sauve, 164 Vt. 134, 140-41, 666 A.2d 1164,
1168 (1995), and State v. Abbati, 493 A.2d 513, 521-22 (N.J. 1985). The
court relied upon the following factors: (1) no significant new evidence
will be available in future trials; (2) the case is a credibility contest
between the victim and defendant, and the State's evidence was
unpersuasive in two trials and "will prospectively remain unpersuasive;"
and (3) defendant continues to suffer personally and financially from the
prosecution. The court recognized that there were factors weighing
against dismissal, particularly the seriousness of the charges and the
alleged victim's desire to continue the prosecution, but it found that
these factors were outweighed by those supporting dismissal. The court
also evaluated whether dismissal would serve "the effective administration
of the [c]ourt's business" and concluded it would because the backlog of
untried felony cases in the Windham District Court meant that a retrial of
defendant was "in contravention

of the rights of other defendants and victims to have a speedy jury
resolution."

As the trial court recognized, this case calls upon us to interpret
and apply our recent controlling decision in State v. Sauve, a case in
which the trial court also dismissed the charges pursuant to V.R.Cr.P.
48(b)(2) following a hung jury. Four points from Sauve are critical to the
decision in the case before us.

First, despite the involvement of "separation-of-powers principles"
when a court dismisses a criminal prosecution supported by substantial
evidence with no opportunity for the state to refile, Sauve,164 Vt. at
139, 666 A.2d at 1167, the court nonetheless has the power to dismiss a
case "when it would be fundamentally unfair to continue the prosecution,"
id. at 140, 666 A.2d at 1167. The power is recognized in V.R.Cr.P.
48(b)(2). This power extends to retrials following a mistrial because of
a hung jury:

the repeated prosecution of a defendant for the same crime
following hung juries where no new evidence exists raises issues
concerning traditional notions of fundamental fairness and
substantial justice. Repeated trials involving the same offense
can frustrate the search for truth and the effective
administration of justice by depleting the resources of the
parties, by imposing hardships on witnesses, and by fostering the
perfunctory presentation of stale testimony, the exaggeration of
subtle differences in witnesses' recollections to challenge their
credibility, and the tailoring of testimony based on the jury's
perceived reaction in prior trials.

Id. at 142, 666 A.2d at 1169.

Second, the power to dismiss is limited: "trial courts may dismiss
prosecutions in furtherance of justice against the wishes of the
prosecutor only in rare and unusual cases when compelling circumstances
require such a result to assure fundamental fairness in the administration
of justice." Id. at 140, 666 A.2d at 1167. Therefore, "the trial court
must generally defer to the prosecutor's

decision to retry the case, but if fundamental fairness compels dismissal,
the court is authorized to do so." Id. at 142-43, 666 A.2d at 1169.
Defendant has the burden of proof to show grounds to dismiss with
prejudice following one or more hung juries. Id. at 144, 666 A.2d at 1170.

Third, Sauve contains a list of non-exclusive factors for the trial
court to evaluate and apply to its determination whether dismissal with
prejudice is appropriate. Id. at 140-41, 666 A.2d at 1168. The court
"should consider such factors, which weigh the respective interests of the
defendant, the complainant, and the community at large." Id. at 141, 666 A.2d at 1168.

Fourth, the trial court's decision whether to dismiss with prejudice
under V.R.Cr.P. 48(b)(2) involves an exercise of the court's discretion,
reviewable in this Court only for abuse of discretion. We reverse a
discretionary decision only if the trial court has "'entirely withheld its
discretion or where the exercise of its discretion was for clearly
untenable reasons or to an extent that is clearly untenable.'" Brueckner
v. Norwich University, 169 Vt. 118, 133, 730 A.2d 1086, 1097 (1999)
(quoting Lent v. Huntoon, 143 Vt. 539, 552, 470 A.2d 1162, 1171 (1983)).

Applying these principles, we reversed the decision to dismiss with
prejudice in Sauve, concluding that the grounds relied upon by the trial
judge were inadequate. Specifically, the court dismissed the case because
of the traumatic effect on the victim of having to testify again, the fact
that the evidence would be the same in another trial, and the age of the
evidence. We held that these factors were inadequate to justify the
remedy because the victim wanted to go forward with another trial despite
the difficulty in giving testimony, there had been only one trial so it was
not clear what verdict another jury would reach, and the age of the
evidence was of limited relevance without some showing of prejudice,
especially since the crime involved had a very long statute of limitations.

Sauve, 164 Vt. at 144-45, 666 A.2d at 1170. As the trial court emphasized,
this is a very different case from Sauve, primarily because there have
been two prior trials and the trial judge was not relying upon its view of
the impact of further trials on the alleged victim, without evidence to
support that view. Thus, the trial court noted "judicial discretion is
exercised on a stronger factual and procedural basis [than was present in
Sauve]."

The State argues that the trial court misapplied the Sauve factors and
could not find a compelling reason to overrule the prosecutor's decision
to go forward with a third trial. This argument gives us an opportunity
to revisit the Sauve factors. We continue to stress that in cases
involving retrials after hung juries, the trial court should consider all
relevant factors in deciding whether to prevent a retrial by dismissing
the case with prejudice under Rule 48(b)(2). The trial court discharged
this obligation in this case. We believe, however, that the most important
factor will be the likelihood that the state will prevail in a third
trial. Indeed, in State v. Abbati, the primary precedent upon which our
decision in Sauve is based, the New Jersey Supreme Court characterized the
decision before it as turning upon whether "the chance of the State's
obtaining a conviction upon further retrial is highly unlikely." Abbati,
493 A.2d at 521. Virtually all decisions which have authorized trial
courts to dismiss cases to prevent retrials following hung juries have
emphasized the primary role of this factor. E.g., United States v.
Ingram, 412 F. Supp. 384, 385-86 (D.D.C. 1976); Ex Parte Anderson, 457 So. 2d 446, 451 (Ala. 1984) ("trial judge's evaluation of the evidence must
also be given serious consideration"); State v. Moriwake, 647 P.2d 705, 713
(Haw. 1982); State v. Simmons, 752 A.2d 724,, 729-30 (N.J. Super. Ct.
2000); State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978).

In this case, the trial judge who presided at the second trial also
ruled on the motion to dismiss with prejudice. His thorough ruling
indicates that he had read the transcript of the first trial. He
characterized the State's prospects in a third trial as grim and stated its
evidence "will prospectively remain unpersuasive." He is in the best
position to make this assessment because he observed the testimony and
demeanor of defendant and the alleged victim, and each juror's decision
must turn on which of those two witnesses to believe.

Two related factors particularly support the trial court's decision.
First, the jury votes were less favorable to the State in the second
trial, as compared to the first, to the point where the jurors were
equally divided after that trial. As we emphasized in Sauve, retrials tend
to be less effective vehicles in finding the truth than the first trial.
For whatever reason, the retrial was less persuasive to the jurors than
the first trial.

Second, the State has not identified any new evidence that could be
introduced into the third trial that would offer a significant chance of
improving the result. See State v. Paige, 607 A.2d 164, 169 (N.J. Super.
Ct. 1992) (third trial authorized under the Abbati standard primarily
because new evidence emerged). Indeed, the State has conceded that this
factor is against it.

We also believe it is significant that there have been two hung juries
in this case as compared to only one in Sauve. As we said in Sauve, the
number of hung juries is not determinative, but it is an important factor.
164 Vt. at 143, 666 A.2d at 1169; accord Moriwake, 647 P.2d at 713. Each
inconclusive retrial heightens our concern about the fairness of the
process and the continued ability of the defendant to muster the human and
financial resources to present a thorough and effective defense. See
Jones v. Hogg, 732 F.2d 53, 57 (6th Cir. 1984) (multiple prosecutions
involve financial

burdens and "emotional stress associated with an unresolved accusation of
wrongdoing").

Primarily for these reasons, we conclude that the trial court could
find compelling grounds to prevent further retrial in this case. Whether
this Court, or another trial judge, would have reached a different
decision is not the question. The trial court acted within the range of
its discretion, and we must affirm its decision.

In reaching this conclusion, we reject the State's argument that the
trial court dismissed the case primarily because of docket congestion,
which it considers to be an irrelevant factor. We are not prepared to
state that docket congestion is irrelevant because it may affect the
ability of the trial court to provide a speedy trial to the defendant
before it and to other defendants. See United States v. Rossoff, 806 F. Supp. 200, 203 (C.D. Ill. 1992) (tripling of criminal caseload a factor in
court's decision to dismiss with prejudice after a second hung jury).
Whatever our general view, however, docket congestion was not a
determinative factor in this case. See State v. Corchado, 512 A.2d 183,
187 (Conn. 1986) (although trial court alluded to "crowded dockets,"
decision to dismiss was based on other proper factors). The trial court
noted that Rule 48(b)(2) has two prongs, requiring it to look at whether
dismissal would serve "the ends of justice" and also "the effective
administration of the [c]ourt's business." It viewed the second prong as
requiring it to look independently at the effect of a retrial in this case
on the disposition of other cases.

Although the wording of the rule sets forth two independent elements,
our decision in Sauve did not frame the inquiry in that fashion. Instead
it required the court to look at all relevant factors against a general
standard of "fundamental fairness and substantial justice." Sauve, 164 Vt.
at 142, 666 A.2d at 1169. That standard embodies both prongs of Rule
48(b)(2) and does not require an

independent analysis of the state of the court's docket. Thus, the court's
analysis of this factor was superfluous. Following the first trial,
defendant moved to dismiss the prosecution alleging prosecutorial
misconduct in the closing argument. By cross-appeal, he argues here that
the court should have granted the motion under the Vermont Constitution,
Chapter I, Art. 10. Because of our disposition of the State's appeal, we
do not reach the cross-appeal issue.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 99-223

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit

Paul Fitzpatrick December Term, 1999

Paul F. Hudson, J.

Dan M. Davis, Windham County State's Attorney, and James E. Maxwell, Deputy
State's Attorney, Brattleboro, for Plaintiff-Appellant.

Thomas Z. Zonay of Ford, Johnson & Zonay, P.C., Woodsstock, for
Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J., dissenting. In determining whether to re-try a
defendant after one or more mistrials resulting from jury deadlock, it is
certainly proper to consider such factors as the possible effect of a
retrial on the victim, the age of the evidence, and the likelihood of
obtaining a conviction. These are among the considerations that any
prosecutor would weigh in responsibly exercising prosecutorial authority.
That they are also criteria which -- according to the majority - any judge
may regularly assess in deciding whether to dismiss criminal charges over a
prosecutor's objection reveals the essence of the constitutional conflict
in this case. In the name of the "interests of justice," the majority has
virtually usurped the prosecutor's core constitutional function, in

violation of the separation of powers clause of the Vermont Constitution.
Vt. Const., ch. II, § 5. (FN1) I therefore respectfully dissent.

I recognize that my position runs counter to the Court's recent
holding in State v. Sauve, 164 Vt. 134, 666 A.2d 1164 (1995). In my view,
however, that decision overlooked critical arguments which - properly
considered - would have yielded a very different result. Thus, while I
respect the doctrine of stare decisis, as Justice Jackson once observed,
"I see no reason why [the Court] should be consciously wrong today because
[it] was unconsciously wrong yesterday." Massachusetts v. United States,
333 U.S. 611, 639-40 (1948) (Jackson, J., dissenting).

A reexamination of Sauve reveals several critical omissions. Although
the Court acknowledged that V.R.Cr.P. 48(b)(2) was based upon a proposed,
but unadopted, amendment to Federal Rule of Criminal Procedure 48, it
ignored the well founded reasons for its rejection. The Advisory
Committee Note to the proposed federal rule cited two circumstances in
which dismissals "in the interests of justice" might be proper: when the
court is faced with a "de minimis" violation, and "when the prosecution
has been unable to bring the matter promptly to disposition." Proposed
Amendment to Criminal Rules, 48 F.R.D 553, 640-41 (1970). Sauve rejected
the significance of the advisory committee notes, which were incorporated
into the Reporter's Notes to our own Rule, observing that neither of the
examples contained therein constituted an "exclusive list" of the
circumstances in which the court can dismiss a case with prejudice. 164
Vt. at 139, 666 A.2d at 1166.

What Sauve did not consider was the fate of the proposed amendment to
the federal rule, which was ultimately rejected based upon the
recommendations of a Special Committee on Federal

Rules of Procedure. See Report of the Special Committee on Federal Rules
of Procedure, 52 F.R.D. 87, 104 (1971). Notwithstanding the limited scope
of the amendment contemplated in the Advisory Committee Note, the Special
Committee expressed serious reservations about its potential impact upon
the role of the prosecutor and the public interest. The Committee
observed, for example, that cases which might on the surface appear to be
"de minimis" to a court could, to the government agency enforcing the
statute, be of "great importance to a legitimate public end." Id. at 105.
The fundamental flaw in the proposed rule, however, was its potential for
conflating the traditional roles of the court and prosecutor:

To authorize a court to dismiss a criminal case for reasons other
than on its merits or to prevent infringement of fundamental
rights of the accused, appears to this Committee to be an unwise
departure from the traditional function of the court. The
Executive Department through the United States attorney, and the
people through their grand jury, have the function of deciding
who will be tried and for what offenses. Other ways should be
found to clear a docket backlog rather than to make this
substantial departure from the court's traditional role.

Id.

Thus, even the relatively modest expansion of judicial power
contemplated by the federal amendment - the direct model for our own Rule
- was rejected as an unwarranted intrusion upon the prosecutor's
traditional charging authority. It remains the prevailing view among the
federal courts that a judge does not possess "an overriding power to
terminate a criminal prosecution in which the Government's evidence has
passed the test of legal sufficiency simply because he thinks that course
would be most consonant with the interests of justice." United States v.
Weinstein, 452 F.2d 704, 714-715 (2d Cir. 1971); see also United States v.
Brown, 602 F.2d 1073, 1076 (2d Cir. 1979) (court lacked power to dismiss
indictment following mistrial based upon hung jury "simply

because it deems the dismissal to be in the interests of justice").

Sauve relied, as well, upon a number of decisions from other states
recognizing a judicial power to dismiss criminal charges without the
prosecutor's consent. Most of these decisions, however, were based upon
either long-standing statutes or implied judicial authority, not - as in
Vermont - upon a limited federal model. See, e.g., State v. Moriwake, 647 P.2d 705, 708 (Haw. 1982) (court concluded trial court had inherent power
to dismiss indictment with prejudice after two mistrials); State v.
Abbati, 493 A.2d 513, 517 (N.J. 1985) (trial court has inherent power to
dismiss indictment over prosecutor's objection); People v. Kirby, 460 N.Y.S.2d 572, 573 (App. Div. 1983) (trial court has inherent authority to
terminate prosecution after mistrials based on deadlocked juries); ( State
v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978) (trial court had "inherent
authority" to terminate prosecution).

Moreover, while is true that a number of state courts have adopted a
broad view of the judicial power to dismiss in the interests of justice,
others have resisted the temptation to expand their authority at the
expense of the executive. In People v Sierb, 581 N.W.2d 219 (Mich. 1998),
for example, the defendant moved to dismiss arson charges after two
mistrials based upon hung juries. The trial court found that a new trial
would be "fundamentally unfair" and dismissed the charges with prejudice.
Id. at 220. A divided court of appeals affirmed. Id.

The Michigan Supreme Court, however, reversed. While acknowledging
that a number of courts had declared their inherent authority over the
administration of justice to preclude retrials attributable to jury
deadlock, the Michigan court "reject[ed] the rationale that the
administration of justice confers authority on this Court to allocate
resources available to law enforcement . . . or to assess the relative
priority of discrete charges in a given community." Sierb, 581 N.W.2d at
222.

As to the defendant's claim premised upon "fundamental fairness," or
substantive due

process, the court acknowledged that continual re-prosecution, particularly
when no new evidence exists, may well visit hardships upon the defendant,
the witnesses, and the victim. The court concluded, nevertheless, that the
decision to dismiss must - under our constitutional framework - reside
with the prosecutor, and ultimately with the people:

We hold that in dismissing this case in the circumstances here
presented, the trial judge violated the doctrine of separation of
powers. The amorphous claim endorsed by the trial court and the
Court of Appeals would inevitably call for courts to decide what
policy of retrial is best for all the people of Michigan. . . .
"Which policy is best for the people is a complex question,
answered different ways at different times in this nation . . .
- but it is a question about moral and efficient law enforcement
for the people to debate and resolve." . . . [A]bsent a violation
of the constitution or specific statutory authority, we are not
persuaded that we have the authority or the wisdom to monitor the
performance of the elected prosecutor.

Id. at 225 (quoting Mays v. East St. Louis, 123 F.3d 999, 103 (7th Cir.
1997)). (FN2)

Other cases are in accord. See, e.g., State v. Kinchen, 707 A.2d 1255, 1261 (Conn. 1998) (respect for separation of powers compelled
conclusion that trial court lacks authority to dismiss complaint absent
"constitutional infirmity or other fundamental defect in the state's
exercise of its prosecutorial authority"); People v. Morrow, 542 N.W.2d 324, 326 (Mich. Ct. App. 1995) ("trial court's authority over the
discharge of the prosecutor's duties is limited to those activities or
decisions by the prosecutor that are unconstitutional, illegal, or ultra
vires"); Sullivan v. State, 874 S.W.2d 699, 704 (Tex. Ct. App. 1994)
(absent specific statutory or constitutional authority, trial court lacked
power to dismiss after two hung juries except on motion of prosecutor);
State v. Blackwell, 845 P.2d 1017, 1022 (Wash. 1993) (court lacks power to
dismiss criminal charges absent

showing of "arbitrary action or governmental misconduct").

Maintaining the separation of powers in this context represents more
than mere adherence to form. As the United States Supreme Court has
explained, judicial respect for the independence of the prosecutor "rests
largely on the recognition that the decision to prosecute is particularly
ill-suited to judicial review. Such factors as the strength of the case,
the prosecution's general deterrence value, the Government's enforcement
priorities, and the case's relationship to the government's overall
enforcement plan are not readily susceptible to the kind of analysis the
courts are competent to undertake." Wayte v. United States, 470 U.S. 598,
607 (1985). Accordingly, in the absence of a fundamental defect in the
information, a constitutional violation such as a denial of the right to a
speedy trial or double jeopardy, or a patent abuse of prosecutorial power,
the courts should - indeed they must - "'abstain from setting policy for
the performance of the prosecutorial function.'" Kinchen, 707 A.2d at 1261
(quoting State v. Ellis, 497 A.2d 974 (1982)).

The consequences of Sauve's decision to disregard these warnings and
to vest the judiciary with a power to dismiss coextensive with the
executive branch are readily apparent in this case. Following two trials
on charges of sexual assault and related offenses, and two deadlocked
juries, the trial court concluded that a third trial would not "serve the
ends of justice," and therefore granted defendant's motion to dismiss
pursuant to V.R.Cr.P. 48(b)(2). The State had vigorously opposed the
motion, arguing that it was not, as contemplated in Sauve, one of those
"rare and unusual cases when compelling circumstances require such a
result." 164 Vt. at 140, 666 A.2d at 1167. The State noted that the
charges, including forcible rape, were extremely serious; the harm to the
victim and her family was severe; the victim remained cooperative; and
the evidence - even without more - was sufficient to support a conviction.
The offense - which carried a six-year statute of limitations - had
occurred only two years earlier. The two prior juries had split
seventeen-to-seven for

conviction. And, finally, the State maintained that a retrial was
necessary from a "community" perspective for the message that it would
send to victims of rape, and for the purpose of maintaining public
confidence in the judicial system.

Although the trial court did not overtly reject the State's arguments,
it found that they were overbalanced by "the anxiety, embarrassment and
public exposure to ridicule" a third trial would cause defendant, the fact
that the State had not adduced new evidence, and the likelihood - in the
court's view - that the results of a third trial would not be different.
Because the trial court carefully reviewed and weighed the Sauve factors,
and reached a reasonable result, the majority here concludes that the
court did not abuse its discretion, and therefore must be affirmed.

Thus, under Sauve a reasonable prosecutorial decision to retry a
defendant for sexual assault has been effectively subjected to judicial
review, with deference accorded judicial rather than executive judgment.
The commingling of power is complete; the executive's core constitutional
function of deciding whether or not to prosecute has been virtually
appropriated by the judicial branch. The violation of the separation of
powers clause could not, in my view, be more clear. See In re D.L., 164
Vt. 223, 229, 669 A.2d 1172, 1176 (1995) (focus of separation of powers
inquiry is whether one branch "so encroaches upon another branch's power
as to usurp from that branch its constitutionally defined function").
Accordingly, I would hold that the trial court lacked the power to
dismiss the information in this case, and reverse the judgment.

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. That section provides: "The Legislative, Executive, and Judiciary
departments, shall be separate and distinct, so that neither exercise the
powers properly belonging to the other."

FN2. The Michigan court distinguished cases holding that double jeopardy
principles may bar a retrial, after numerous mistrials following
deadlocked juries, where the court concludes that jeopardy has attached.
See, e.g., Green v. United States, 355 U.S. 184, 187-88 (1957); Preston v.
Blackledge, 332 F. Supp. 681, 687-88 (E.D. N.C. 1971).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.