Brief filed: 12/03/2025
Documents
Breimeister v. United States
United States Supreme Court; Case No. 25-407
Prior Decision
Decision below 133 F.4th 496 (5th Cir. Apr. 7, 2025)
Argument(s)
The Fifth Circuit’s holding that a defendant impliedly consented to a district court’s sua sponte mistrial—despite his express anticipatory objection to a mistrial—undermines bedrock constitutional Double Jeopardy protections under the Fifth Amendment. Five weeks into a jury trial, pervasive prosecutorial discovery errors were discovered, which then raised the prospect of a mistrial. Defendant Scott Breimeister filed a written objection to a mistrial, and stated that if a mistrial were declared, then the government should not get to benefit of a retrial from its own self-inflicted errors. But the Fifth Circuit’s rule requires a defendant to object again, contemporaneously with the district court’s mistrial ruling, in order to make an objection clear. Under this rule, the failure to do so amounts to implied consent to a mistrial. Fundamental Double Jeopardy principles require a higher standard for finding implied consent to a mistrial, and any close calls should be resolved in favor of a defendant’s Double Jeopardy protections. Nor can the government’s self-inflicted errors meet the standard of a “manifest necessity” for mistrial—an issue on which the government bears a heavy burden. Mistrial decisions are high stakes and made in hectic, fast-paced trial environments. Such circumstances require resolving any ambiguities in favor of defendants’ liberty. Defendants bear the emotional, financial, and strategic burdens of successive trials, and they should not be penalized for prosecutorial self-inflicted errors.
Author(s)
Adam Kleven, Ephraim Wernick, Michael Crowley, Ryan Subel, Vinson & Elkins, LLP, Washington, DC; Parker J. Cragg, Vinson & Elkins, LLP, Houston, TX; Hendy Posner, Emma Shuck, Vinson & Elkins, LLP, New York, New York; Barbara E,. Bergman, NACDL, Tuscan, AZ; Monica J. Milton, NACDL, Washington, DC; Matthew P. Cavedon, Cato Institute, Washington, DC.
