Consent Controls: Minnesota Supreme Court Clarifies Double Jeopardy After Defendant-Requested Mistrials

Introduction

In State of Minnesota v. Johnnie Lerma, the Minnesota Supreme Court addressed when the Double Jeopardy Clauses of the United States and Minnesota Constitutions bar a retrial after a mistrial is declared. The central issue was whether a defendant who expressly requests a “complete mistrial” on all counts can later invoke double jeopardy to block retrial when the trial judge, not the prosecutor, engaged in arguably problematic communications with the deliberating jury. The Court held that because Lerma requested—and received—a mistrial, retrial is permitted unless the “government” intentionally goaded him into making that request. Importantly, the Court confirmed that “government” for this purpose includes the trial judge, not just the prosecutor.

The case arose from a May 2022 jury trial involving five charges, including first- and third-degree criminal sexual conduct, domestic assault, and threats of violence. During deliberations, a juror reported a COVID-19 exposure; the court halted further deliberation, intended to accept any completed verdicts, and to declare a mistrial on deadlocked counts. Before the court learned whether verdicts existed, Lerma asked for “a complete mistrial on the entire case.” Later, after the judge answered jurors’ questions about what a mistrial means, the jury returned stating it had no unanimous verdicts; the court declared a mistrial on all counts.

Lerma moved to dismiss the refiled case on double jeopardy grounds. The district court denied the motion, the court of appeals affirmed, and the Minnesota Supreme Court granted review. The Supreme Court affirmed, holding that double jeopardy does not bar a retrial because Lerma consented to the mistrial and could not show the government intentionally provoked his request.

Summary of the Opinion

The Court held:

• When a defendant requests or consents to a mistrial, retrial is barred by double jeopardy only if the government intentionally induced, goaded, or provoked the defendant to seek the mistrial (applying Oregon v. Kennedy).
• “Government” includes the trial judge; the provocation inquiry is not limited to prosecutorial conduct.
• Lerma requested a complete mistrial before the judge discussed mistrial mechanics with the jury; thus, there was no causal connection or intent to provoke his request.
• Lerma did not withdraw his consent or preserve an objection; none of his five theories for implied withdrawal or later preservation succeeded.
• Even if the judge’s communications to the jury posed structural-error concerns, the remedy would be retrial, not a bar on reprosecution; thus, the structural-error contention could not transform into a double-jeopardy dismissal.

Because Lerma requested and received a mistrial and could not show intentional governmental provocation, double jeopardy did not attach. Retrial may proceed.

Analysis

Precedents Cited and Their Role

• Oregon v. Kennedy, 456 U.S. 667 (1982) — The keystone principle: when a defendant moves for a mistrial, retrial is not barred unless the government intended to provoke the mistrial request to subvert the double jeopardy protections. Minnesota has adopted this rule for state constitutional analysis (see Fuller). Lerma’s case applies Kennedy and clarifies that “government” includes a judge.
• Illinois v. Somerville, 410 U.S. 458 (1973) — Establishes that double jeopardy analysis does not end with attachment; after a mistrial, the inquiry becomes whether retrial is barred. Also underpins the “manifest necessity” doctrine when mistrial is declared over defense objection.
• State v. McDonald, 215 N.W.2d 607 (Minn. 1974) — Jeopardy attaches when the jury is impaneled and sworn; however, retrial may still be permissible in certain mistrial contexts.
• State v. Fuller, 374 N.W.2d 722 (Minn. 1985) — Minnesota embraces Kennedy: if the defendant consents to a mistrial, retrial is barred only for intentional governmental provocation. If the defendant objects to a mistrial, the State must show “manifest necessity.”
• State v. Long, 562 N.W.2d 292 (Minn. 1997), and State v. Gouleed, 720 N.W.2d 794 (Minn. 2006) — Both recognize a defendant can change position: where a defendant initially sought a mistrial but later explicitly objected or sought continuance when the court sua sponte declared a mistrial, courts evaluate double jeopardy under “manifest necessity.” Lerma did not make such an explicit withdrawal or objection.
• State v. Large, 607 N.W.2d 774 (Minn. 2000) — Distinguishes a reserved ruling on a mistrial and later dismissal based on insufficiency (which bars retrial as an acquittal). In Lerma, the court did not reserve the mistrial; it declared it, and Lerma did not bring a post-trial sufficiency motion. Large therefore does not help Lerma.
• State v. Reed, 737 N.W.2d 572 (Minn. 2007) — Clarifies that “reserving ruling” is distinct from ruling; used to counter Lerma’s claim that his mistrial request was “denied.”
• State v. Hunter, 815 N.W.2d 518 (Minn. App. 2012) — Discusses implied consent to a mistrial when counsel is silent. Lerma’s case is stronger for the State: Lerma expressly requested a mistrial; there is no need to infer consent.
• Arizona v. Fulminante, 499 U.S. 279 (1991); Pulczinski v. State, 972 N.W.2d 347 (Minn. 2022); State v. Harris, 533 N.W.2d 35 (Minn. 1995) — Structural and trial errors generally lead to reversal and retrial, not a bar under double jeopardy. Lerma cannot convert alleged structural error into an absolute bar on reprosecution.
• Minn. R. Crim. P. 26.03, subd. 19(4)(f) — Allows post-trial challenge to jury instructions in a motion for new trial based on fundamental law error, but it is not a vehicle to preserve a double jeopardy objection to mistrial when no new-trial motion is made. Inapplicable to Lerma’s posture.

Legal Reasoning

The Court applied the Kennedy/Fuller framework to determine whether retrial is barred when a defendant requests a mistrial:

1. Consent triggers the provocation test. Lerma’s counsel explicitly stated, “[Lerma] wants me to ask for a complete mistrial on the entire case.” That is consent. In such circumstances, the only bar to retrial is if the government actor intended to provoke that request, thereby turning the defendant’s “valued right to complete [the] trial before the first jury” into a “hollow shell.”
2. “Government” includes the trial judge. The opinion expressly frames the provocation inquiry around “the government—here, the district court judge,” confirming that judicial conduct, not only prosecutorial behavior, can theoretically satisfy Kennedy. That clarification matters in cases where a judge’s actions, rather than a prosecutor’s, arguably create pressure to terminate the trial.
3. No intentional provocation on this record. The communications the judge had with jurors about mistrial occurred after Lerma requested a complete mistrial. That timing defeated causation. Moreover, the judge’s responses were triggered by juror questions. Even if the content was ill-advised, nothing suggested an intent to goad Lerma into moving for mistrial. The Court emphasized that mere error—even error that could justify a mistrial—does not satisfy Kennedy; there must be a specific intent to subvert double-jeopardy protections.
4. No withdrawal of consent or preserved objection. Lerma advanced five alternative theories to recast his earlier consent as withdrawn or void:
   • “Denial” of request — The judge did not deny the request; the court’s initial response was conditional, and ultimately the court granted the exact relief Lerma sought: a complete mistrial.
   • Changed circumstances (possible partial verdicts on three counts) — Lerma’s request was made knowing some, none, or all counts could already have verdicts. The foreperson’s statement that three forms were unsigned did not nullify consent. If circumstances mattered, Lerma needed to explicitly withdraw his request. He did not.
   • Defense counsel’s “concern” dialogue — Counsel said “nothing for the record” and then explored hypotheticals about whether jurors could change their minds. That discussion did not function as an explicit objection or a request to proceed to verdicts; it was not the kind of affirmative action recognized in Long or Gouleed.
   • Post-declaration “permission” to object later — Unlike in Large, the district court did not reserve ruling on the mistrial; it declared it. The judge’s comment about taking inventory did not grant leave to raise double jeopardy later, nor did Lerma bring a post-trial sufficiency motion or anything akin to a judgment of acquittal.
   • Invoking Rule 26.03, subd. 19(4)(f) — That rule permits post-trial challenges to jury instructions in a motion for new trial. Lerma did not seek a new trial; he sought dismissal. The rule is inapplicable.
5. Structural error cannot morph into a double-jeopardy bar. Even if the judge’s discussion of mistrial with a deliberating jury were “structural error,” the standard remedy is retrial, not dismissal with prejudice. The Court thus declined to reach whether the communications were structural error, noting that Lerma will receive the very remedy structural error typically entails—a new trial.

The Court expressly did not decide whether “manifest necessity” existed to halt deliberations because of potential COVID-related pressure on jurors to reach unanimity, explaining that this issue mattered only when a mistrial is declared over a defendant’s objection. Here, the defendant consented.

Impact and Implications

State v. Lerma fortifies several practical and doctrinal points in Minnesota double jeopardy law:

• Government-provocation doctrine extends to judges. This is a meaningful clarification in Minnesota: intentional “goading” under Kennedy is not the exclusive domain of prosecutors. Judicial conduct could, in theory, trigger the bar—though the bar remains high.
• Consent means what it says. A defendant who asks for a mistrial will face retrial unless they can prove intentional governmental provocation. Courts will not infer withdrawal or non-consent from equivocal exchanges or from “changed circumstances” unless the defendant takes an explicit, on-the-record step to object or to request a different course (e.g., a continuance).
• No sandbagging. The opinion deters post hoc attempts to transform a defense-requested mistrial into a dismissal with prejudice, preserving fair trials while preventing gamesmanship.
• Structural error ≠ double jeopardy bar. Trial error (even structural) is remedied by retrial, not dismissal. Only acquittals, insufficiency-of-the-evidence reversals, or intentional governmental provocation foreclose reprosecution.
• Practical trial guidance. The Court cautioned trial judges against discussing mistrials and their consequences with a deliberating jury. Such communications may affect deliberative dynamics and spawn appellate challenges—even if they do not bar retrial.
• Open question preserved. Whether a COVID-related exposure can create “manifest necessity” to halt deliberations is left for another day; counsel and judges should build detailed records when public-health concerns intersect with jury deliberations.

Complex Concepts Simplified

• Double jeopardy: A constitutional protection preventing the State from trying a person twice for the same offense. In a jury trial, jeopardy “attaches” when the jury is sworn. That does not automatically bar retrial after a mistrial; further analysis is required.
• Mistrial: Termination of a trial before a verdict is returned. A mistrial can occur because of a deadlocked jury, incurable prejudice, juror misconduct, or other reasons. Whether retrial is permitted depends on who requested the mistrial and why.
• Manifest necessity: If the court declares a mistrial over a defendant’s objection, the State must show a “manifest necessity” for doing so (a high standard). If shown, retrial is allowed. Lerma’s case did not reach this issue because Lerma requested the mistrial.
• Government provocation (Kennedy): When a defendant requests a mistrial, retrial is barred only if the government intentionally provoked or goaded the request to avoid an acquittal and “subvert” double jeopardy protections. Negligence, recklessness, or even serious error does not satisfy this standard; intent is required.
• Structural error: Fundamental trial defects (like denial of counsel or a biased judge) that defy harmless-error review and typically require automatic reversal. However, the usual remedy is a new trial, not a bar to reprosecution.
• Partial verdicts and finality: A jury’s agreement is not a legally final verdict until it is signed and, if polling is requested, confirmed. Unsigned forms or tentative unanimity do not create acquittals that would bar retrial.

Practice Pointers

• Defense counsel:
  • Assume that asking for a mistrial will open the door to retrial. If you need to preserve double jeopardy, object to the mistrial and force a manifest-necessity showing.
  • If circumstances change and you no longer want a mistrial, explicitly withdraw your request or ask to proceed (or for a continuance) on the record.
  • When partial verdicts may exist, consider whether to ask the court to take verdicts before consenting to a mistrial. Absent signed verdicts, there is no final acquittal.
  • Build a record. If you believe the court’s actions are coercive or prejudicial, object contemporaneously.
• Prosecutors:
  • When a defendant requests mistrial, memorialize that the State did not provoke the request. Avoid conduct that could be construed as goading.
  • Resist judicial explanations to the jury about mistrials; request neutral instructions and adherence to pattern guidance.
• Trial judges:
  • Avoid explaining mistrial consequences to deliberating jurors. If questions arise, consult counsel and consider neutral responses that do not invite premature termination of deliberations.
  • If health or external pressures exist (e.g., COVID exposure), make a detailed record of the risk, alternatives considered, and reasons for the chosen course.
  • Be precise on the record about whether a mistrial ruling is being reserved or declared.

Conclusion

State v. Lerma confirms and sharpens the Kennedy framework in Minnesota: when a defendant requests a mistrial, a double jeopardy bar to retrial arises only if the government intentionally provokes the request. The Court explicitly recognizes that “government” includes the trial judge for provocation analysis, declines to infer withdrawal of consent absent an explicit on-the-record change of position, and reiterates that structural error remedies in this context mean retrial, not dismissal. While the Court leaves unresolved whether COVID-related pressure can create “manifest necessity,” it cautions trial courts against discussing mistrial mechanics with jurors mid-deliberation.

The decision’s core takeaways are straightforward: consent governs; intent matters; and clean records are essential. Going forward, Lerma will guide litigants and courts through the fraught territory where mistrials, juror dynamics, and double jeopardy intersect.