No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.

By Daniel A. Horwitz

Yesterday, Judge Monte Watkins declared a mistrial in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”  Judge Watkins’ eight-page mistrial order is accessible here.  As explained in detail in this post from last week, Tennessee law presumes jurors to be biased when they give false statements or fail to be forthcoming in response to questions asked during jury selection, and under such circumstances, a new trial is appropriate regardless of the strength of the evidence that was presented.   In this case, the juror in question appears to have lied several times in response to a wide array of questions that he was asked during voir dire.  For example, in page six of Judge Watkins’ ruling, he explains: “[I]t would be difficult to believe that Juror #9 did not [recall] his involvement in a statutory rape case when sexual assault, rape, and unwanted sexual touching [were] mentioned over one hundred and four times during the course of voir dire.”

Following Judge Watkins’ mistrial declaration, several observers have inquired whether the Double Jeopardy clause of the Fifth Amendment prohibits the government from re-trying the two defendants.  It does not.  According to the U.S. Supreme Court, barring bad-faith or prosecutorial misconduct, “a mistrial ruling explicitly contemplates reprosecution of the defendant.”  United States v. Jorn, 400 U.S. 470, 476 (1971).  As the Supreme Court has explained:

The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.  Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. . . . [T]here have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government o[r] the defendant.   It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial.

Wade v. Hunter, 336 U.S. 684, 688-89 (1949) (emphasis added).

Indeed, this rule has been settled since at least 1891, when the U.S. Supreme Court held that after a trial judge discovered that a juror was biased, “it was clearly within [the judge’s] authority to order the jury to be discharged, and to put the defendant on trial by another jury; and the defendant was not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.”  See Simmons v. United States, 142 U.S. 148, 155 (1891).  Tennessee law, for its part, is no different.  See State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993) (“when a juror conceals or misrepresents information tending to indicate a lack of impartiality, a challenge may be made as here in a motion for new trial.”).

There are many instances in which the application of the Double Jeopardy clause is more complex—such as when a trial judge declares a mistrial over a defendant’s objection before the jury has announced its verdict.  This situation is not among them, and the Double Jeopardy clause has no application here.  As a result, the defendants in this case can be and will be re-tried.

Questions about this article?  Email Daniel Horwitz at

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