Missing Witnesses, Mistrials, and Manifest Necessity

The Fourth Circuit recently issued a decision prohibiting retrial of a defendant charged with murder following a mistrial. The government obtained the mistrial over the defendant’s objection when a key witness could not be located during the trial. On appeal, the Fourth Circuit found that no manifest necessity justified the mistrial and that double jeopardy prohibited another attempt by the government to convict the defendant. I previously wrote about mistrials and double jeopardy here, and I wanted to flag this case for readers for its treatment of missing witnesses in the mistrial context. The case is Seay v. Cannon, ___ F.3d ___, 2019 WL 2552953 (4th Cir., June 21, 2019). Facts. Seay was indicted for murder in South Carolina along with two co-defendants. According to the government, the two co-defendants kidnapped the victim, a suspected informant. Seay later joined the group and the three men shot the victim ten times “execution-style”, killing him. One co-defendant, Howard, was tried first. Howard’s girlfriend Grant was a critical witness for the government, as she encountered the group of men shortly after the murder. Her testimony was needed to identify Seay as the person with the other two co-defendants shortly after the murder. Howard was convicted at trial with Grant’s testimony. Grant herself was charged with obstruction of justice relating to the murder, but that charge was dismissed following her testimony during the Howard trial. Around two years later, the government sent Grant a subpoena compelling her testimony at the Seay trial. The government spoke [...]