believe favorably disposed to his fate."); United States v. Givens, 88 F.3d 608, 613 (8th Cir. 1996) ("Manifest necessity . . . is a flexible standard that seeks fairness to the defendant, the government, and the public interest.").
Although a judge's inability to continue a trial as scheduled may, in some circumstances, render a mistrial declaration manifestly necessary, see, e.g., Gori, 367 U.S. at 372 (considering a mistrial warranted upon a "breakdown in judicial machinery such as happens when a judge is stricken") (Douglas, J., dissenting); United States v. Lynch, 194 U.S. App. D.C. 213, 598 F.2d 132 (D.C. Cir. 1978) ("Illness of a judge is an exigency which may support the declaration of a mistrial and a finding of manifest necessity."), cert. denied, 440 U.S. 939, 59 L. Ed. 2d 498, 99 S. Ct. 1287 (1979), such a conclusion does not necessarily follow. See, e.g., United States v. Sartori, 730 F.2d 973, 977 (4th Cir. 1984) (finding viable alternatives to recusal and mistrial negated manifest necessity); Lynch, 598 F.2d at 135 (evaluating court efforts to substitute judges or otherwise avoid a mistrial). Where, as here, the court can effectively substitute another judge to complete the trial as if that judge presided from its commencement, the necessity of a declaring a mistrial lessens considerably.
Cf. Sartori, 703 F.2d at 976 (deeming judge substitution preferable to recusal and mistrial and thus finding no manifest necessity). The necessity of declaring a mistrial similarly lessens where a court can adjourn and not dismiss its jury until the trial judge can return, or at least until the trial judge or a designee can reflect on the mistrial decision without intense time pressure and without precluding otherwise viable alternatives.
Thus, while Judge Citta's family emergency made it manifestly necessary to take some form of immediate action, it did not make it manifestly necessary to mistry the case.
In the midst of the personal tragedy he was enduring it is fully understandable that a capable and skilled trial judge like Judge Citta would fail to consider the double jeopardy implications of his decision. His one and only overriding concern was to get home as quickly as possible to comfort his grieving wife. Knowing that home was more than an hour and a half away must have added to the pressure.
Had Judge Citta or Judge Braithwaite realized the potential double jeopardy issue, they surely would have considered less drastic alternatives, including a recess of a one or two days to permit the meaningful involvement of counsel in decisions as to further proceedings. However, in that moment of grief, the court simply did not consider the double jeopardy consequences of an erroneous decision, see Hearing Tr. at 14 (testimony of Judge Citta) ("[Double jeopardy] never crossed my mind, no."), heard no argument on the appropriateness of such a measure, see id. at 18 (testimony of Judge Citta) (recalling he sought no input from counsel regarding the mistrial decision), and insufficiently considered measures less drastic than declaring a mistrial. See id. at 14 (testimony of Judge Citta) (conveying a cursory consideration of substituting judges and a failure to realize the instantly available Judge Alvarez); Love, 282 N.J. Super. at 598, 660 A.2d at 1251 (conceding Judge Citta's failure to consider reasonable alternatives); see also Crawford v. Fenton, 646 F.2d 810, 818 n.9 (3d Cir.) ("The more obvious and adequate the alternative is, the greater the role it must play in the trial judge's discretionary determination of whether a manifest necessity exists to declare a mistrial."), cert. denied, 454 U.S. 872, 70 L. Ed. 2d 178, 102 S. Ct. 344 (1981). Although Judges Citta and Braithwaite acted in good faith without any motive to improve the chances of petitioner's conviction at a subsequent trial, see Love 282 N.J. Super. at 599, 660 A.2d at 1251 (treating this point as dispositive),
their decision was not an exercise of sound discretion.
This Court can only conclude that while the actions of Judges Citta and Braithwaite were understandable in human terms, there was no manifest necessity, in constitutional terms, to declare a mistrial and to deprive petitioner of his "valued right to have his trial completed by a particular tribunal." Jorn, 400 U.S. at 484. The availability of several adequate, less drastic alternatives negates a finding of manifest necessity and compels this Court to conclude that petitioner's retrial following a mistrial violated the Double Jeopardy Clause of the United States Constitution.
The Court must now consider whether to stay the issuance of the writ of habeas corpus and delay petitioner's release pending an appeal to the Court of Appeals for the Third Circuit. See Fed. R. App. P. 23(c). In Hilton v. Braunskill, 481 U.S. 770, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1986), the Supreme Court held that in considering the grant of a stay, a court may consider whether "the prisoner will pose a danger to the public if released." Id. at 777. The Court went on to note that
the State's interest in continuing custody and rehabilitation pending a final determination of the case on appeal is also a factor to be considered; it will be strongest where the remaining portion of the sentence to be served is long, and weakest where there is little of the sentence remaining to be served.