Although prosecutors in Rio Blanco County eventually secured convictions after bringing a man to trial three times, the state’s Court of Appeals has now wiped away the verdict because of a judge’s erroneous decision to declare a mistrial during the first set of proceedings.

On appeal, defendant Edwin Richard Gereaux alleged a range of errors had occurred across his three trials. But a three-judge panel of the appellate court only needed to address District Court Judge Anne K. Norrdin’s initial declaration of a mistrial. Because of the mistake, Gereaux’s convictions are now vacated and the government may not try him a fourth time.

Prosecutors charged Gereaux with drug possession and driving-related offenses stemming from a November 2016 traffic stop. A trooper pulled Gereaux over for speeding, but then learned Gereaux had a suspended license. When the trooper performed an inventory of the vehicle in preparation for towing it, he uncovered methamphetamine under a seat.

Gereaux’s first trial took place over two days in August 2018. On the second day, Gereaux’s attorney asked Norrdin to have a different judge adjudicate “an issue” involving the defense. Now appearing before District Court Judge Denise K. Lynch, Gereaux’s attorney admitted he did not fully investigate the suspended license and, therefore, had not effectively represented his client.

Lynch suggested the suspension charge be severed from the others, and there could be separate proceedings after the defense attorney had an opportunity to prepare. Gereaux and his lawyer both agreed, and Lynch ordered the severance.

Back in the courtroom with Norrdin and the prosecution, the defense announced Lynch’s decision. But the prosecutor argued it “isn’t fair” to the government to sever the suspended license charge because the prosecution “would present it in a different manner to the jury if they had known from the beginning” there would be a severance.

The prosecutor also raised the possibility of violating double jeopardy, which prohibits placing a defendant on trial again for the same offense following an acquittal or, in some instances, a mistrial. Norrdin called Lynch to explain her reasoning, and Lynch elaborated that there would be no double jeopardy problem if Gereaux’s jury heard evidence about the suspension charge after a trial on all of the other offenses.

To clear things up, Gereaux’s attorney added the defense “has essentially waived a double jeopardy claim” by agreeing to Lynch’s proposal.

Nevertheless, the prosecution requested that Norrdin declare a mistrial on all charges based on their understanding of double jeopardy. The judge mulled the implications for the jury of simply removing the suspension charge from the main trial.

“I can’t tell them why that charge would not be part of the charges that they’re considering,” she said, and there would consequently be “questions that would remain about why that charge is not part of those that they’re considering.”

Norrdin then declared a mistrial and dismissed the jury. Jurors later convicted Gereaux at his third trial, and he received a sentence of one year in prison.

On appeal, Gereaux pointed to Colorado Supreme Court precedent finding a criminal trial that terminates before its completion implicates a defendant’s protection against double jeopardy, unless the trial judge has a sufficient justification for declaring a mistrial. Such a decision requires there to be a “manifest necessity,” meaning reasonable alternatives are unavailable.

“Under the circumstances, the trial court had a reasonable alternative to a mistrial,” argued attorney Patrick R. Henson to the Court of Appeals. “Indeed, juries regularly hear about charges and evidence related to charges that are later dismissed voluntarily or via a motion for judgment of acquittal.”

The appellate panel agreed with Gereaux. He had waived his right to be free from double jeopardy, and consequently there was no “manifest necessity” to declare a mistrial for that reason. Severing the suspension charge and giving the jury instructions about how to handle the offense would have been sufficient, believed the panel.

“We therefore conclude that the district court’s decision to grant a mistrial on all counts on August 22, 2018, was without legal justification and thus an abuse of discretion,” wrote Judge Jerry N. Jones in the Dec. 22 opinion.

The case is People v. Gereaux.