By Joseph Ax
NEW YORK, Feb 21 (Reuters) - 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
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
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
"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
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.
For Morris: Marika Meis, Adeola Ogunkeyede and John Vang of
the Bronx Defenders.
For Livote: Susan Anspach of the New York attorney general's
For the prosecution: Assistant district attorneys Tammy
Vadasz and Breanne Smith for the Bronx district attorney's
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