McJimson

Appellant timely entered a plea of “once in jeopardy” at the commencement of his second trial for the murder of Cynara Pope, the first having been declared a mistrial after a jury was impaneled because the deputy district attorney assigned the case was ill. At the second trial, McJimson was found guilty of second degree murder and sentenced to state prison.

Because we conclude the judgment must be reversed on “double jeopardy” grounds, no exposition of the facts of the crime is necessary, but this court is mindful that the victim was the mother of a small child and that its ruling precludes retrial of a man convicted by a jury of beating her to death.

While not wishing to be unduly harsh on the trial judge, who attempted to be both fair and solicitous to the needs of counsel, our ruling, to which we feel absolutely compelled, makes brutally clear the need for extreme care—by deputy district attorneys as well as judges— in matters such as the declaration of mistrials.

A jury was impanelled on Thursday, November 13, 1980, and instructed to return to begin the trial on the following Monday, the 17th. By that date, however, Mr. Weiss, the deputy district attorney assigned…