A Look at the Law

In Pinney v. Commonwealth (Supreme Judicial Court of Massachusetts No.  SJC-13100, July 1, 2021), Mr. Pinney was tried for murder. The trial ended in a mistrial, meaning no outcome was achieved. The reported decision does not describe how the mistrial occurred, but typically a mistrial results when a jury is unable to reach a unanimous verdict. In Mr. Pinney’s case, the government was permitted to put Mr. Pinney to a second trial (which is not always true after a mistrial).

Prior to the second trial Mr. Pinney was successful in obtaining an order excluding the results of a swab of his cheek that was used at the first trial. The government then sought a court order permitting the government to obtain a second swab (to be used at the second trial), which the court granted.

Mr. Pinney appealed the order permitting the second swab, contending “it would be fundamentally unfair to require him to go through a second trial that is infected from the outset with reversible error.” Essentially Mr. Pinney contended that he was entitled to appeal the order permitting the second swab before the second trial, rather than require a second trial and only after trial obtain an appellate determination as to whether the second swab was properly permitted--that determination possibly negating the second trial but nevertheless subjecting him to the ordeal of trial.

The state supreme court declined to decide Mr. Pinney’s appeal, taking the position: "[Mr. Pinney] can raise the issue of the propriety of the order compelling the production of the [cheek] swab [o]n . . . appeal[ after a second trial], should he be convicted."

Rather than resolve the issue prior to trial, the court requires Mr. Pinney to submit to a second trial, which, if he is convicted, necessarily will result in an appeal (at least as to the issue of the cheek swab--an issue as to which Mr. Pinney had already prevailed). 

Even if Mr. Pinney were acquitted at a second trial, it is possible that a prior appellate determination as to the cheek swab would avoid a trial--the outcome of the appeal (whatever it might be) perhaps motivating some negotiated outcome (from dismissal to guilty plea). The court, rather than deciding the appeal, takes a position that all but requires a second trial and perhaps creates the result that when it finally is willing to decide the appeal (after the second trial) finds that trial to be defective--requiring still further proceedings.

It seems unfair to submit an accused (who may be held on bail) to a trial and subsequent appeal when a reasonable chance exists that the second trial may be voided for events that occurred--and can be resolved--prior to trial.