67 N.Y.2d 383 (1986)

An attorney’s consent to a mistrial, whether express or implied, is binding on the defendant, even if the defendant is absent and has not personally consented, as the decision to consent to a mistrial falls within the scope of the attorney’s authority.

Summary

Edward Ferguson was convicted of second-degree murder after a retrial. His first trial ended in a mistrial declared while he was absent. Ferguson appealed, arguing double jeopardy, claiming his lawyer’s consent to the mistrial was invalid without his presence and personal consent. The New York Court of Appeals affirmed the conviction, holding that defense counsel’s implied consent to the mistrial was binding on the defendant, even in his absence, and that personal consent from the defendant was not constitutionally required. The court reasoned the decision to consent to a mistrial is a tactical one properly belonging to the attorney.

Facts

Edward Ferguson was charged with second-degree murder after fatally shooting Ozell Jackson. During the fourth day of the trial, a juror was involved in an automobile accident and hospitalized. The trial judge, after a conference with attorneys (not recorded), indicated she was considering a mistrial due to the lack of alternate jurors. Ferguson was absent when the judge announced to the remaining jurors that a mistrial would be declared. Defense counsel waived Ferguson’s appearance and remained silent as the judge dismissed the jury.

Procedural History

The first trial ended in a mistrial. Prior to the second trial, Ferguson moved to dismiss the indictment, claiming double jeopardy, arguing his attorney had not given unqualified consent. The trial court denied the motion. Ferguson was convicted in the second trial. The Appellate Division affirmed the conviction, finding implied consent from defense counsel. The dissenting justices disagreed with the finding of implied consent and argued that the defendant’s presence was necessary for the attorney’s consent to be valid. Ferguson appealed to the New York Court of Appeals.

Issue(s)

1. Whether defense counsel impliedly consented to the mistrial.
2. Whether defense counsel’s consent to a mistrial is effective only if the defendant was present at the time such consent was given.

Holding

1. Yes, because defense counsel’s statement in chambers (“the Judge must do what she feels must be done”) and silence when the court declared a mistrial to the jury provided support for the lower courts’ finding of implied consent.
2. No, because the decision to consent to a mistrial is a tactical one that falls within the scope of the attorney’s authority, and thus the defendant’s personal consent or presence is not constitutionally required.

Court’s Reasoning

The Court of Appeals addressed whether the defendant’s right against double jeopardy was violated. It acknowledged that retrial after a mistrial is barred unless there was manifest necessity or the defendant consented. The court found manifest necessity lacking because the judge did not adequately explore alternatives to a mistrial, such as a brief continuance. Therefore, the permissibility of the retrial hinged on the defendant’s consent. The court found implied consent based on the attorney’s statement in chambers and silence in court. The court then addressed whether the defendant’s personal consent was required. The court stated that “consent to a mistrial allows a retrial regardless of whether defendant knowingly waived the right not to be prosecuted twice”. The court aligned itself with numerous jurisdictions that hold that “there is no requirement that the Trial Judge obtain the personal consent of the defendant to a mistrial or scrutinize whether the attorney has consulted with the defendant.” The court reasoned that a defendant with counsel relegates control of much of the case to the lawyer, except for certain fundamental decisions (e.g., pleading guilty, waiving a jury, testifying, or appealing). The decision to consent to a mistrial does not fall within this limited category because it requires an evaluation of the case, analysis of evidence, and consideration of potential harm and benefits, making it an appropriate decision for the lawyer. The court noted that while it would be preferable for the lawyer to consult with the client, it held that “for purposes of double jeopardy there was consent to the mistrial.”