ACCA tells us, "Our jurisprudence has long recognized that mistrial and dismissal are not the same." Id., slip op. at 6. The court explains that after a mistrial, the same charges may be referred to a new court-martial. After a dismissal without prejudice, on the other hand, new charges must be preferred if the case is to go forward.
ACCA also tells us that "dismissal is the only remedy for violation of the 120-day rule." Id., slip op. at 7. "Mistrial is not an authorized remedy under R.C.M. 707 for a violation of the 120-day rule." Id. So, ACCA concludes, "dismissal, either with or without prejudice, was required and the military judge’s declaration of a mistrial constituted a clear abuse of discretion." Id.
BUT ACCA disagrees with the defense argument that because jeopardy had attached, Private McClain couldn't be retried on the should-have-been-dismissed charges. ACCA tells us, "In general, '[w]here "the trial is terminated without any submission to either judge or jury as to . . . guilt or innocence" there has been no determination of guilt of [sic] innocence and retrial is not barred.'" Id., slip op. at 9 (quoting United States v. Germono, 16 M.J. 987, 988 (A.C.M.R. 1983)) ([sic] in the original)).
Then, after having taken pains to educate us about the differences between a mistrial and a dismissal, ACCA assures us that "the Supreme Court found a trial court label of 'dismissal' or 'mistrial' not controlling." Id., slip op. at 10 (citing United States v. Lee, 432 U.S. 23 (1977)). ACCA concludes:
The military judge erred in ordering a mistrial when he was required to direct dismissal, but for purposes of the second trial on the original charges, the distinction between mistrial and dismissal "has no significance in the circumstances here presented."
Id. (quoting Lee, 432 U.S. at 31).
ACCA then tells us that in accordance "with numerous military cases holding dismissal of charges does not amount to a finding of not guilty under Article 44, UCMJ," it finds no double jeopardy violation. Id., slip op. at 10-11. All of which leaves me wondering why ACCA chose to publish this curious case.