The Court of Appeals in STANLEY MOGHALU v. UNITED STATES, decided on August 13, 2015, clarified preserving the double jeopardy defense to retrial for appellate review.

Stanley Moghalu was charged with unlawful possession of a firearm (“UPF”) and carrying a pistol without a license (“CPWL”).

The case at the trial level was declared a mistrial twice as the jury could not “return a unanimous verdict that would be anything other than forced.”

The first trial the court granted mistrial at the request of defense counsel, and the second trial the court granted a mistrial over defense objection that anti-lock instructions were warranted before declaring mistrial.

However, significantly, the defense did not assert a double jeopardy defense after the first or the second trial, leading to a third trial, which the jury then did in fact convicted unanimously resulting in this appeal.

Appellant essentially argued on appeal that the second trial Judge abused his discretion by declaring a mistrial when mistrial was in fact unnecessary and could have been avoided — “[t]he prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant”.

Appellant then leaps to the conclusion that the third trial was thus barred by the Double Jeopardy Clause, that his objection to mistrial preserved his double jeopardy claim for appeal. That, the Court of Appeals disagreed with remarking “[t]he constitutional immunity from double jeopardy is a personal right which, if not affirmatively pleaded by the defendant at the time of trial, will be regarded as waived.”

The Court relying on the decision in Miller v. United States, made it clear that the double jeopardy defense can only attach and be reviewed on appeal when defense counsel objects to the ruling of the court to the new trial and had raised the double jeopardy claim before the second trial commences. Specifically the ruling states “that the defendant “must now be presumed to have waived any question arising out of the action of the court in awarding a new trial or as to former jeopardy; in other words, he is not in a position to urge those questions here.”

The Court of Appeals also reviewed and reiterated not only the legal principles but also the practical applications to asserting a double jeopardy claim at the trial level. That is, the clause when property asserted and applied, “assures an individual that . . . he will not be forced . . . to endure the personal strain, public embarrassment, and expense of a criminal trial more than once” for the same crime.

There are few fundamental constitutional defenses that if not raised and preserved at the trial level, would not only foreclose the appellate review but also would not allow the trial court to properly rule on a significant constitutional claim. The double jeopardy clause is one of those defenses and this case highlights the significance of raising and preserving it at trial.