by Douglas Ankney

In a case of first impression, theNew Mexico Supreme Court (“NMSC”) announced that judicial misconduct may bar retrial under the double jeopardy clause of the New Mexico Constitution.

Henry Hildreth, Jr., was charged with several offenses, including felony aggravated battery against a household member with great bodily harm. Steven Seeger was appointed to represent Hildreth. On March 9, 2017 — which was nine days after the discovery deadline and only five days before trial — the State provided Seeger with a CD containing audio recordings of statements made by Hildreth and by the State’s witnesses during their interviews with police.

The next day, Seeger moved for a continuance of the jury trial. He argued that he needed more time to review the CD. The judge denied the motion at a pretrial conference without hearing any argument. Seeger responded by telling the judge that he “would not be ready for trial” and that he would “be present but not participate.” The judge replied “[i]f that is true, then [Defendant] would have ... excellent grounds for appeal on incompetency of counsel.”

On the morning of trial, Seeger again moved for a continuance and for sanctions against the State. He argued that the CD might contain witnesses’ statements and other exculpatory material, but hadn’t had a chance to review it. The State assured the judge that the CD was “nothing that the State would have presented today.” The judge denied the motion, and the trial commenced.

Seeger refused to participate in voir dire, juror challenges, and opening statements. He also refused to cross-examine two of the State’s witnesses — the alleged victim and an eyewitness of the alleged battery. However, after the jury was sworn, Seeger moved for a mistrial and confirmed to the judge that he would not defend Hildreth. The judge denied the motion and allowed the State’s witnesses to testify.

After lunch, Seeger again moved for a mistrial or continuance, arguing that during lunch he’d reviewed the writing on the CD and had discovered the CD contained statements from the two witnesses who had testified earlier. He reiterated that he was not prepared to defend Hildreth due to the late disclosure; he did not hear the CD or have the audio statements transcribed for impeachment purposes; and he did not know if the CD contained exculpatory material — all due to the late disclosure. He, therefore, would not defend Hildreth. The judge again denied the motion. Prior to closing arguments, Seeger once again moved for a mistrial, and the judge denied it. Hildreth was convicted, and he appealed.

The Court of Appeals (“COA”) reversed, finding that Hildreth had been denied effective assistance of counsel. However, the COA rejected Hildreth’s argument that retrial was barred under State v. Breit, 930 P.2d 792 (N.M. 1996), reasoning that Breit applies only to prosecutorial misconduct, not judicial. The NMSC granted Hildreth’s petition for writ of certiorari.

The Court observed “Breit directs that retrial is barred when (1) the ‘improper official conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or motion for a new trial,’ (2) ‘the official knows the conduct is improper and prejudicial,’ and (3) ‘the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.’”

The Court examined the history of Breit and stated it was influenced by federal precedent, especially United States v. Dinitz, 424 U.S. 600 (1976), in which the U.S. Supreme Court explained that the Double Jeopardy Clause bars retrial caused by bad-faith conduct by “judge or prosecutor” that’s “intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.” However, the Court explained that the federal double jeopardy rule was narrowed considerably in Oregon v. Kennedy, 456 U.S. 667 (1982), to a rule based on prosecutorial intent.

Nevertheless, the Court noted that the Breit Court rejected Kennedy’s narrowing of the double jeopardy rule and explained “when this Court derives an interpretation of New Mexico law from a federal opinion, our decision remains the law of New Mexico even if federal doctrine should later change.” The Court stated that the Breit Court purposefully used the language “improper official conduct” rather than “prosecutorial misconduct” to accurately describe the scope of the double jeopardy rule in New Mexico. Thus, the Court concluded that “Breit applies to judicial conduct.”

The Court then applied the Breit test to the judge’s conduct in the present case. As to the first prong, the Court determined that the judge did not possess enough facts to know that his denial of Seeger’s initial motion for continuance and denial of Seeger’s motion on the morning of trial were “so unfairly prejudicial” to Hildreth that cure could be had only by mistrial or new trial.

But at trial, the judge observed Seeger refuse to participate in voir dire, juror challenges, and opening statements. Indeed, after the jury was sworn, Seeger confirmed to the judge in his first motion for mistrial “that he was not going to defend Hildreth.” The judge denied the motion for mistrial and observed Seeger refuse to cross-examine the State’s complaining witness and an eyewitness. After lunch, Seeger renewed his motions for mistrial or continuance. The judge at this time learned that the CD contained statements from the two witnesses who had testified earlier and that the State had mislead the court. Yet, the judge still denied the motion for a continuance, the Court observed.

The Court determined that when the judge denied the motion for continuance made after lunch, his actions were so unfairly prejudicial to Hildreth that the only cure lay with a mistrial or new trial. Thus, the Court concluded Breit’s first prong was satisfied.

Turning to the second prong, the Court reiterated that the right to effective assistance of counsel “requires more than an attorney simply being present at trial.” United States v. Cronic, 466 U.S. 648 (1984). This is no subtle point of law. See id. “[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then ... the adversary process itself [is] presumptively unreliable.” Id.

The knowledge imputed to government officials under Breit is that which “every legal professional, no matter how inexperienced, is charged with knowing.” State v. McClaugherty, 188 P.3d 1234 (N.M. 2008). It is “an objective standard, not a subjective one: the belief of the official regarding his or her own conduct is irrelevant in this analysis.” Id.

The Court determined that “[u]nder this standard, the law presumes that the judge here knew that counsel’s conduct was improper and prejudicial.” It added that “we know of no calculus by which to justify the judge’s refusal  to grant a continuance, mistrial or sanctions —  let alone allow the trial to proceed to its end.” Therefore, the Court concluded that the second prong was also satisfied.

Under the third prong, the reviewing court must “carefully examine the [official’s] conduct in light of the totality of the circumstances of the trial” to determine whether the conduct amounted to “willful disregard of the resulting mistrial, retrial, or reversal.” Breit. The judge clearly acknowledged the likelihood of reversal on appeal when he stated that Hildreth “would have ... excellent grounds for appeal” in response to Seeger once again advising that he would not participant in the trial. And then the judge watched Seeger follow through by refusing to represent Hildreth at trial. Consequently, the Court concluded that the “judge acted in willful disregard of the resulting reversal,” and so, all three prongs of the Breit test were satisfied.

 Therefore, the Court ruled that retrial is prohibited under the New Mexico Constitution, art. II, § 15 — prohibition against any person from being “twice put in jeopardy for the same offense.

Accordingly, the Court affirmed the COA’s reversal of Hildreth’s conviction, reversed the COA’s determination on the inapplicability of Breit, and remanded to the district court for further proceedings in accordance with this opinion. See: State v. Hildreth, 506 P.3d 354 (N.M. 2022). 

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