Court Denies Double Jeopardy Claim in Child Molestation Case

At the defendant’s first trial, it was learned that his attorney had previously represented the alleged victim’s mother and, in doing so, had received information that could benefit the defendant. The problem was that the information was protected by the attorney-client privilege.

The defendant waived the conflict with the understanding that his attorney would not be able to use this information when he cross-examined the mother on the stand. The mother would not waive the conflict nor consent to the disclosure of her privileged communications with the attorney. The trial court found that since the mother would not permit the disclosure of these communications, a serious potential conflict of interest remained, and that defense counsel should be disqualified from representing the defendant.

The discussion about the conflict of interest began after the jury was impaneled and sworn, but prior to the presentation of evidence. Under Georgia law, jeopardy attaches once the jury is impaneled and sworn.

On appeal, the defendant argued that there was no manifest necessity for the trial court to declare the mistrial and that, as a result, trying him again amounted to double jeopardy.

The Court of Appeals noted that establishing the existence of manifest necessity requires “weighing the accused defendant’s right to have his trial completed before the first trier of fact ‘against the interest of the public in having fair trials designed to end in just judgements.’” The trial courts are given broad discretion in determining whether manifest necessity exists.

Although the defendant waived his right to conflict-free counsel in the interest of continuing to be represented by his public defender, the Court found that this was insufficient. It held that to proceed with the first trial, it would have required “the informed consent of both the former client and the current client.” Moreover, because the defendant did not consult with another lawyer to understand the risks and implications of his waiver, it was held that the trial court correctly found that his waiver did not qualify as informed consent.

As a result, the Court of Appeals affirmed the trial court’s denial of the defendant’s double jeopardy plea in bar.