Virginia mistrial law will rarely bar retrial when the criminal defendant requests a mistrial

Virginia mistrial law gives prosecutors even wide shenanigan latitude before a criminal defendant may benefit from making a mistrial motion (MM) l and arguing that the Sixth Amendment Constitutional Double Jeopardy clause bars a retrial. As a Fairfax criminal lawyer, I see that the Virginia Court of Appeals recently affirmed a pharmacist’s conviction for dispensing drugs without a prescription, after rejecting the drug defendant’s claim that prosecutorial misbehavior prompted him to seek a mistrial (to which the prosecutor objected), and that such misbehavior should not allow a retrial. Patel v. Commonwealth of Virginia, Record No. 0201-21-2 (July 12, 2022) (unpublished).

How can a pharmacist expect not to be caught by personally selling drugs without a prescription?

In his Virginia mistrial motion case, Patel is an example of a true story that is more eye popping than a fiction writer could have imagined, depicting financial desperation (at best) of a drug-selling defendant who put his pharmacist license and his liberty on the line. Police wired a confidential information (CI) who said he could purchase prescription drugs from Patel’s pharmacy without a prescription. On several occasions, police wired the CI and gave him premarked money to buy prescription drugs from Patel. Each time, Patel put his criminal prosecution exposure on the line, ironically more than once asking the wired CI if he was wired (which is as ineffectual as when a John asks a would-be prostitute if she is a cop), and ultimately saying that he would have to communicate by written notes, lest his voice be recorded. Patel often did not even label the drugs he was selling, and with the first purchase stuck his foot in his mouth with telling the CI “you’re getting a f—ing deal.” Patel should have realized that he had about as much a chance to avoid prosecution and conviction for such behavior as a drug dealer who sells cocaine person he knows is an undercover cop, out of the hope that he will be able to smoke or snort his cocaine payment for the deal before getting arrested.

Virginia mistrial law is not going to remedy even egregious prosecutorial misbehavior that elicits a defense MM, absent proof that the commonwealth intended to cause a MM

During Patel’s trial — in which he was so desperate that he waived his right to remain silent and testified — the detective testified to a possible federal Drug Enforcement Administration (DEA) drug purchases from Patel (which purchases had not been previously disclosed by the commonwealth in discovery, and which Patel’s lawyer insisted prejudiced his entrapment defense. The prosecutor asserted that he did not know what the detective’s answer would have been to that question, and objected to a mistrial. Under the foregoing circumstances, Patel rejected that a retrial violated Patel’s Double Jeopardy rights under Virginia mistrial law, pointing out that: “‘Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after  having succeeded in aborting the first on his own motion.’” Patel (citing Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982)).

A Virginia criminal defense lawyer is stuck with the cards deal the attorney, unless those cards can be changed

My underlining Patel’s recklessness in his Virginia mistrial case, with his dealing with the CI is not limited to Patel. If all people acted with good judgment at all times, we would have very few criminal defense lawyers to begin with; Virginia criminal defense lawyers repeatedly defend people who engaged in poor judgment, but often with great recklessness. (I do not judge my clients; I defend them to the hilt no matter what.) All people selling illegal drugs (or selling drugs illegally) risk prosecution and conviction. Of course, Patel was being all the more reckless, in that pharmacies get audited for maintaining accurate records and for all missing drugs to be accounted for by legitimate sales. How he expected not to get caught is a mystery, unless he was planning to replace his illegal drug sales with imitations, or unless he was hoping that test checks of his inventory would not reveal the missing drugs. Nonetheless, when defending a person who actually committed a crime and got caught redhanded in his illegal activity, a criminal defense lawyer is stuck with the hand that has been dealt him, unless (as in five-card draw, for instance), the lawyer gets to change those cards, or to obscure or draw attention away from them — or to general jury nullification — within the bounds of the law.

Fairfax criminal lawyer Jonathan Katz focuses on your best defense against Virginia drug, DUI, felony and misdemeanor prosecutions. Jon Katz’s successful experience defending thousands of criminal defendants is testimony to his commitment to your own best possible outcome in court. Call 703-383-1100 for your free initial in-person consultation with Jon about your pending criminal case.