No. 15	                     March 9, 2017	205

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                      STATE OF OREGON,
                     Plaintiff-Adverse Party,
                                v.
                     MARK LYLE MOORE,
                    aka Mark Lyle Moore, Sr.,
                       Defendant-Relator.
                  (CC 14CR12536, SC S063946)

   En Banc
   Original proceeding in mandamus.*
   Argued and submitted October 13, 2016.
   Laura Graser, Portland, argued the cause and filed the
brief for defendant-relator.
   Jennifer S. Lloyd, Assistant Attorney General, Salem,
argued the cause and filed the brief for plaintiff-adverse
party. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   BALDWIN, J.
   Peremptory writ of mandamus to issue.




______________
	   *  On petition for a writ of mandamus from an order of Multnomah County
Circuit Court, Christopher J. Marshall, Judge.
206	                                                            State v. Moore

     Case Summary: Defendant’s arson-related murder trial was well underway
when, following testimony from eight of the state’s witnesses, the prosecutor
abruptly announced his discovery of a new witness — an insurance investiga-
tor — who, according to the prosecutor, was willing to testify that, based on his
insurance-related examination of the crime scene, the fire that had killed the
victim was the result of arson. Although defendant objected to that evidence, he
was unambiguous in his desire to avoid a mistrial and finish the proceedings
against him with the jury his lawyer selected. After ruling that testimony from
the state’s newly-discovered expert would, indeed, be allowed, the trial court went
on to declare a mistrial on its own motion. Among other things, the trial court
found that the state had met its burden of establishing that the new evidence
to be admitted was, under the circumstances, so prejudicial to defendant that
a “manifest necessity” existed to retry defendant before a new jury. Defendant
subsequently moved to dismiss the new indictment that followed, citing, in part,
his former jeopardy rights under Article I, section 12, of the Oregon Constitution.
That motion was denied, however, and defendant’s petition for mandamus relief
to the Oregon Supreme Court followed shortly thereafter. Held: A peremptory
writ of mandamus shall issue. The Court concluded that the applicable “manifest
necessity” standard has not been met in this case. First, the prosecutor commit-
ted a serious mistake by proceeding to trial before discovering one of his key
witnesses. It was that mistake, in fact, that created the prejudice that the trial
court sought to mitigate by ordering a mistrial. Second, it is significant that the
state had already presented eight witnesses prior to the mistrial. That testimony
would potentially present the state with an unfair advantage at a new trial since
the state could further prepare many of its witnesses based on their prior trial
participation. As a result, the trial court’s sua sponte mistrial order and denial of
defendant’s subsequent motion to dismiss (1) violated defendant’s right to be free
from a second prosecution for the same offense under the Oregon Constitution
and (2) constituted fundamental legal error.
    Peremptory writ of mandamus to issue.
Cite as 361 Or 205 (2017)	207

	       BALDWIN, J.
	        In this original proceeding, relator (defendant), who
is a defendant in the underlying criminal case, seeks a writ
of mandamus directing the trial court to dismiss the indict-
ment against him with prejudice, based on former or dou-
ble jeopardy under state and federal law. After a jury was
impaneled and several witnesses for the state had testified,
the trial court declared a mistrial. When the state sought a
retrial, defendant moved to dismiss the indictment on jeop-
ardy grounds, and the trial court denied his motion. The
issue before us now is whether, under Article I, section 12, of
the Oregon Constitution, there was “manifest necessity” for
the trial court’s mistrial order. For the reasons that follow,
we conclude that the state has not met its burden of demon-
strating that the trial court’s mistrial was consistent with
the “manifest necessity” standard. We therefore direct the
issuance of a peremptory writ of mandamus requiring the
trial court to dismiss the indictment with prejudice.
                      BACKGROUND
	        This petition arises out of criminal charges involv-
ing defendant, codefendant Golden, and a third defendant,
Richardson. All three men allegedly played a role in the
arson-related death of the victim. Defendant and codefen-
dant Golden presently face retrial, after the trial court
declared a mistrial over defendant’s objection and dismissed
the charges against both men without prejudice. The state
sought to proceed with a retrial against both defendants
on multiple counts of murder and first-degree arson. Prior
to the first trial, Richardson, the third defendant, pleaded
guilty to a single count of third-degree assault as part of an
agreement to cooperate with police authorities and testify
against the codefendants.
	        In February 2011, Richardson was living—with the
owner’s consent—in a small detached garage located next to
a house. Unbeknownst to the owner, however, Richardson
had allowed the victim, Purcell, to stay in the garage as
well. One night, a fire broke out in the garage with the vic-
tim inside. Firefighters arrived, removed Purcell from the
burning structure, and put the fire out. Purcell, however,
died of smoke inhalation some time later.
208	                                          State v. Moore

	        In the fire investigation that followed, state fire
authorities found blood on the floor of the garage, along with
numerous syringes, discoveries that subsequently prompted
the intervention of Portland homicide investigators. An
autopsy revealed that Purcell had died of asphyxia from
inhaling smoke and carbon monoxide, but the state investi-
gators who examined the fire scene were not able to find any
arson-related indicators. One investigator and his acceler-
ant-sniffing K-9 partner searched in vain for evidence that
an accelerant had been used to start the fire. Instead, what
the investigator found was a structure that he concluded
was a “firetrap,” a space littered with combustible materials,
multiple plugged-in extension cords, and several locations
where a fire could have started accidentally.
	        Shortly after the fire, Richardson recounted the
events of that evening to investigators and stated that the
fire had apparently been an accident. Two months later,
however, Richardson—who had been jailed on charges not
specified on this record—confessed to police that he had
entered the garage and beaten up the victim on the night of
the fire. According to Richardson’s new account, defendant
and codefendant Golden arrived at the garage and started
the fire after Richardson had left the area. Defendant and
Golden were subsequently indicted on murder and arson
charges; Richardson was released from jail and charged
with third-degree assault.
	        According to defendant, at the beginning of trial,
he was confident about his trial strategy. In opening state-
ments, defendant’s trial counsel had asked the jury to care-
fully consider the “pros and cons” of the evidence that would
come before it in determining whether the fire that had
killed the victim was arson or an accident. The “pros” were
the state fire investigators who had examined the burned-
out garage in the wake of the victim’s death. Counsel indi-
cated that they would uniformly testify that the cause of
the fire was undetermined, that there was no physical evi-
dence linking defendant to the victim’s death, and that there
would be no expert testimony indicating that the fire was the
result of arson. The “cons,” in contrast, constituted many of
the prosecutor’s other witnesses—incarcerated individuals
who, burdened with lengthy criminal histories and pending
Cite as 361 Or 205 (2017)	209

criminal charges, were highly motivated to provide favor-
able testimony for the state in exchange for certain consid-
erations regarding their sentences and the charges against
them.
	        The state called its first eight witnesses, among
them, the firefighting personnel who had been at the crime
scene, and local a resident, Thomas. At one point, Thomas
testified that she had seen defendant and codefendant
Golden leaving the garage shortly before it caught fire, but
made other statements that conflicted with that testimony.
Ultimately, Thomas acknowledged that, at the time of the
fire, she had been awake on crystal methamphetamine
for approximately 24 hours and that the drug affected her
memory.
	       At the end of the first day of trial, the prosecutor
stated that he was “still trying to track down information
on the arson—the fire investigation from the insurance com-
pany.” On the next day of trial, the prosecutor stated that he
had discovered a new witness and new evidence that he now
wished to present as part of the state’s case-in-chief:
   	 “[A]s you recall, last week, Thursday, the state apprised
   the Court and defense counsel that it had become aware
   that there is potentially information from the insurance
   company that an investigator, a fire investigator, did a
   complete investigation and made a determination as to the
   source and cause of the fire, and that’s all we knew at that
   time.”
According to the prosecutor, he was still awaiting the
recently subpoenaed insurance file but had, in the interim,
spoken with insurance investigator Gunsolly and procured
the investigator’s notes. The handwritten notes, which the
prosecutor gave to the trial court and opposing counsel,
contained the names of different fire and police officials
involved with the post-fire investigation, along with the
names of various potential witnesses. The prosecutor stated
that, during his conversation with the insurance investiga-
tor, the investigator
   “had ruled out that this was a fire that was caused by elec-
   trical purposes and that he believe that a handheld, open
   source flame was used to light some materials in the garage
210	                                                            State v. Moore

    to start the fire. In essence, my interpretation of that is he
    believed that somebody intentionally started the fire, that
    it was not accidental.”
	        Both defendants moved to exclude the prosecutor’s
new evidence, arguing that to do otherwise would not only
be fundamentally unfair, but would also “encourage the
state to remain willfully blind to something that was in dis-
covery.” Defendant nevertheless rejected the possibility of a
mistrial, arguing that, “we do not want a mistrial” because
“the defense is always prejudiced when they have to retry
the case.” The trial court, however, denied the motion to
exclude, ruling that the new evidence would be admitted.1
	        Codefendant Golden’s counsel, opining that he
was obligated to do so, responded by moving for a mistrial.
Defendant did not join in that motion; his counsel stated,
“We don’t want a mistrial. We like this jury; we like how
we’re doing.” Counsel later reiterated, “[W]e are not joining
[codefendant’s] motion; we are not seeking a mistrial. That
is done in consultation with our client.” The trial court then
granted codefendant Golden’s motion for a mistrial, on its
own motion declared a mistrial as to defendant, and dis-
missed the jury. Shortly thereafter, the state reindicted both
defendants.
	        Defendant subsequently moved to dismiss the
indictment against him citing his former jeopardy and dou-
ble jeopardy rights under ORS 131.525(1),2 Article I, section
12, of the Oregon Constitution, and the Fifth Amendment
to the United States Constitution. After briefing and oral
argument, the trial court declined to dismiss the indict-
ment. It ruled:
    “We will find that the state has met its burden of proof to
    show that there was manifest necessity in declaring the

	1
       The parties have not argued the correctness of that ruling in this proceed-
ing, and we express no opinion on that issue.
	2
       ORS 131.525(1) is, in part, a codification of the test of “manifest necessity”
set forth in United States v. Perez, 22 US 579, 6 L Ed 165, 9 Wheat 579 (1824).
See State v. Cole, 286 Or 411, 417-18, 595 P2d 466 (1979) (so stating). However,
the parties did not develop a statutory argument under ORS 131.525(1) in either
the trial court or in this court. Further, the trial court did not base any rul-
ing on ORS 131.525(1). Thus, we limit our analysis to the parties’ constitutional
arguments.
Cite as 361 Or 205 (2017)	211

   mistrial that the ends of public justice could not be served
   by a continuation of the proceedings.”
The trial court later made a number of findings and conclu-
sions, among them that (1) the state had met is burden of
proof to demonstrate that there was manifest necessity to
declare a mistrial; (2) the state had not violated any pre-
trial discovery rules with its mid-trial request to have the
insurance investigator testify; (3) there had been no reason
to believe that the prosecutor used the superior resources
of the state to harass or achieve a tactical advantage over
defendant; (4) the insurance investigator’s anticipated tes-
timony and report would be extremely probative of the core
issue in the case and would not be substantially outweighed
by the danger of unfair prejudice or needless presentation of
cumulative evidence; and (5) this case was like the United
States Supreme Court’s decision in Wade v. Hunter, 336
US 684, 689, 69 S CT 834, 93 L Ed 974 (1949), in which
the Court opined that “a defendant’s valued right to have
his trial completed by a particular tribunal must in some
instances be subordinated to the public’s interest in fair tri-
als designed to end in just judgments.”
	       The trial court scheduled a new trial date for both
defendants. After the trial court denied defendant’s motion
to dismiss the indictment against him, defendant petitioned
this court for a writ of mandamus.
                  PARTIES’ ARGUMENTS
	        The parties agree that the question for this court’s
determination is whether the trial court’s mistrial ruling over
defendant’s objection met the constitutional standard of “man-
ifest necessity.” Defendant argues that he was entitled to com-
plete his trial with the jury selected and that the state has
not met its burden of demonstrating that the mistrial decision
was consistent with the standard of “manifest necessity.”
	       The state, for its part, acknowledges that “the ulti-
mate question whether defendant was entitled to dismissal
on jeopardy grounds is a legal one.” However, the state first
argues that the trial court—by ordering a mistrial—was
simply exercising its discretion to address the prejudice to
defendant resulting from the court’s ruling admitting the
212	                                                           State v. Moore

new evidence. Second, the state argues that defendant’s
objection to a mistrial was equivocal because defendant had
suggested to the trial court that defendant would not be able
to proceed with trial even if the court allowed a continuance.
                                 ANALYSIS
	        “Mandamus is an extraordinary remedy that may
serve only to enforce a known, clear legal right.” Longo v.
Premo, 355 Or 525, 531, 326 P3d 1152 (2014). Although a
writ of mandamus “shall not be issued in any case where
there is a plain, speedy, and adequate remedy in the ordi-
nary course of the law,” ORS 34.110, defendant neverthe-
less contends that a writ should issue here because the right
to appeal after a conviction would not vindicate his consti-
tutional right to be free from a second prosecution for the
same offense. Subject to defendant sustaining his constitu-
tional claim, defendant is correct that mandamus relief is
available to avoid a reprosecution. See State ex rel Turner v.
Frankel, 322 Or 363, 376, 908 P2d 293 (1995) (so holding).
Thus, the issue for our determination is whether defendant
had a clear, legal right to dismissal of the state’s indictment
after the trial court had ordered a mistrial and discharged
the original jury in this case.3
	        Defendant’s motion to dismiss the indictment against
him was based on former jeopardy under Article I, section
12, of the Oregon Constitution and double jeopardy under
the Fifth Amendment of the United States Constitution.4
Both provisions “provide, in somewhat different terms, that
	3
       As noted, the state contends that the trial court properly exercised discre-
tion in ordering a mistrial over defendant’s objection. However, mandamus relief
may be appropriate when “the trial court’s decision amounts to ‘fundamental
legal error’ or is ‘outside the permissible range of discretionary choices’ ” avail-
able. Lindell v. Kalugin, 353 Or 338, 347, 297 P3d 1266 (2013) (quoting State ex rel
Keisling v. Norblad, 317 Or 615, 623, 860 P2d 241 (1993)). As we will explain, the
trial court’s decision below amounted to fundamental legal error.
	4
       Article I, section 12, of the Oregon Constitution provides:
    “No person shall be put in jeopardy twice for the same offence [sic] * * *.”
	   The Fifth Amendment of the United States Constitution provides:
    “No person shall * * * be subject for the same offense to be twice put in jeop-
    ardy of life or limb[.]”
Neither party argues that those provisions have different meanings as applied
here.
Cite as 361 Or 205 (2017)	213

a defendant in a criminal case has a right not to be put
in jeopardy twice for the same offense.” State v. Cole, 286
Or 411, 419, 595 P2d 466 (1979). This court’s practice has
been to resolve such claims first under state law while giv-
ing proper weight to relevant United States Supreme Court
opinions that we find persuasive. See, e.g., id. at 417-18
(applying state statute to jeopardy claim before analyzing
under Supreme Court cases); see also Sterling v. Cupp, 290
Or 611, 614, 625 P2d 123 (1981) (“proper sequence is to ana-
lyze the state’s law,” before reaching a federal constitutional
claim). We have, in some instances, concluded that the state
and federal provisions afford varying degrees of protection
to a criminal defendant. See State v. Kennedy, 295 Or 260,
276-77, 666 P2d 1316 (1983) (acknowledging that Oregon
law concerning retrial after prosecutor-induced mistrial not
identical to federal law); State v. Rathburn, 287 Or 421, 431,
600 P2d 392 (1979) (Article I, section 12, barred reprosecu-
tion of defendant as result of bailiff’s prejudicial remarks
to jury); State v. Brown, 262 Or 442, 497 P2d 1191 (1972)
(holding that Article I, section 12, requires consolidation of
all charges known to prosecutor).
	        Thus, we analyze defendant’s Article I, section 12,
claim first and, in doing so, give proper weight to relevant
United States Supreme Court opinions that we find persua-
sive. The general purpose and meaning of the federal dou-
ble jeopardy bar has been cogently summarized by Justice
Hugo Black:
   	 “The constitutional prohibition against ‘double jeopardy’
   was designed to protect an individual from being subjected
   to the hazards of trial and possible conviction more than
   once for an alleged offense[.]
   	   “* * * * *
   	 “The underlying idea, one that is deeply ingrained in at
   least the Anglo-American system of jurisprudence, is that
   the State with all its resources and power should not be
   allowed to make repeated attempts to convict an individual
   for an alleged offense, thereby subjecting him to embar-
   rassment, expense, and ordeal and compelling him to live
   in a continuing state of anxiety and insecurity, as well as
   enhancing the possibility that even though innocent he
   may be found guilty.”
214	                                            State v. Moore

Green v. United States, 355 US 184, 187-88, 78 S Ct 221,
2 L Ed 2d 199 (1957). This court has embraced a similar
view regarding Article I, section 12, by holding that “a bar
against prosecution must be derived from the constitutional
objective to protect defendant against ‘the harassment,
embarrassment and risk of successive prosecutions for the
same offense’ and that ‘[i]t is not a sanction to be applied for
the punishment of prosecutorial or judicial error.’ ” Kennedy,
295 Or at 273 (footnote omitted).
	        The dimensions of the guarantee against double
jeopardy and the many issues that may arise when the state
seeks to reprosecute a defendant are varied and complex.
See, generally Wayne R. LaFave et al, 6 Criminal Procedure
§ 25 (4th ed 2015). Where, as here, a trial court declares a
mistrial over a defendant’s objection, that decision is exam-
ined against the standard of “manifest necessity.” United
States v. Perez, 22 US 579, 6 L Ed 165, 9 Wheat 579 (1824);
Arizona v. Washington, 434 US 497, 98 S Ct 824, 54 L Ed 717
(1978); see also Cole, 286 Or at 419 (applying standard).
	In Cole, this court held that the state had “sus-
tained its burden to show that there was such a ‘manifest
necessity’ as to justify the dismissal of the jury and avoid
the bar of double jeopardy,” when the trial judge in that case
had become so ill that he was hospitalized. Id. at 424. In so
holding, the court distinguished between two distinct kinds
of necessity: (1) “physical necessity”, and (2) the “necessity
of doing justice” based on the duty of the court to “guard the
administration of justice.” Id. at 423. The court characterized
the circumstance of the judge’s illness as a “physical neces-
sity” and noted that “there is nothing in the record to show
that either the defendant or his attorney would have agreed
to the continuation of the trial before any other judge.” Id.
at 425. Justice Linde, specially concurring, emphasized that
the trial judge “became incapacitated after the jury was
selected and sworn but before any testimony was taken.” Id.
at 426. His view was that, “[i]n a case in which witnesses
have been examined and cross-examined, including perhaps
the defendant himself,” a mistrial “might be much more
prejudicial” and, “when the defendant is prepared to con-
tinue with a new judge[, the state’s burden] might arguably
be greater.” Id.
Cite as 361 Or 205 (2017)	215

	        As noted, the United States Supreme Court first
established the “manifest necessity” standard in Perez, an
1824 case where the Court held that the failure of a jury
to agree on a verdict did not bar the state from retrying
the defendant. At that point, the standard was undeveloped,
requiring only the exercise of “standard discretion” consis-
tent with the “ends of the public justice,” a power, the Court
nevertheless added, that “ought to be used with the greatest
caution, under urgent circumstances[.]” Perez, 22 US at 580.
In Arizona v. Washington, the Court explained:
    	 “The words ‘manifest necessity’ appropriately char-
    acterize the magnitude of the prosecutor’s burden. * * *
    [But] it is manifest that the key word ‘necessity’ cannot be
    interpreted literally; instead, contrary to the teaching of
    Webster, we assume that there are degrees of necessity and
    we require a ‘high degree’ before concluding that the mis-
    trial is appropriate.”
434 US at 505-06. The Supreme Court has, moreover, often
observed that the validity of each “manifest necessity” rul-
ing depends on the unique circumstances that each case
presents.5 Such a standard, the Court has stated, “abjures
the application of any mechanical formula by which to judge
the propriety of declaring a mistrial in the varying and
often unique situations arising during the course of a crim-
inal trial.”6 Illinois v. Somerville, 410 US 458, 462, 93 S Ct
1066, 35 L Ed 2d 425 (1973).
	5
       Arizona, 434 US at 505; Illinois v. Somerville, 410 US 458, 462, 93 S Ct
1066, 35 L Ed 2d 425 (1973), United States v. Jorn, 400 US 470, 480, 91 S Ct 547,
27 L Ed 2d 543 (1971).
	6
       Professor LaFave’s commentary about the many factors that may be rele-
vant in assessing whether a mistrial order is justified by “manifest necessity” is
instructive:
    “A substantial number of factors enter into the assessment of ‘manifest neces-
    sity’ on a fairly regular basis. They are (1) the source of the difficulty that led
    to the mistrial—i.e., whether the difficulty was the product of the actions of
    the prosecutor, defense counsel, or trial judge, or were events over which the
    participants lacked control; (2) whether the difficulty could have been inten-
    tionally created or manipulated for the purpose of giving the prosecution an
    opportunity to strengthen its case; (3) whether the possible prejudice or other
    legal complications created by the difficulty could be ‘cured’ by some alter-
    native action that would preserve the fairness of the trial; (4) whether the
    record indicates that the trial judge considered such alternatives; (5) whether
    any conviction resulting from the trial would inevitably be subject to rever-
    sal on appeal; (6) whether the trial judge acted during the ‘heat of the trial
216	                                                         State v. Moore

	        In addition to the authorities noted above, we also
consider two United States Supreme Court cases that we
find particularly relevant to our inquiry here: Downum v.
United States, 372 US 734, 83 S Ct 1033, 10 L Ed 2d 100
(1963), and United States v. Jorn, 400 US 470, 480, 91 S Ct
547, 27 L Ed 2d 543 (1971).
	In Downum, a trial court granted the state’s request
to discharge an impaneled jury after the state had allowed
the jury to be selected and sworn even though one of its key
witnesses was absent and had not been found. 372 US at
735. The trial court cited precedent, including Wade, for the
proposition that “[a]t times the valued right of a defendant
to have his trial completed by the particular tribunal sum-
moned to sit in judgment on him may be subordinated to
the public interest—when there is an imperious necessity
to do so,” but concluded that the circumstances presented
did not pose such a necessity. Id. at 736. The Court observed
that to not bar the subsequent prosecution of the defendant
would allow the trial court to “exercise what would be an
unlimited, uncertain, and arbitrary judicial discretion.” Id.
at 738. Downum is similar to this case, in that the state did
not identify a key witness until after the trial was under-
way, and the trial court ordered a mistrial over defendant’s
objection.
	In Jorn, a plurality opinion, the trial court, sua
sponte, discharged an impaneled jury to allow state wit-
nesses to consult with their own attorneys because the trial
court was unsure whether the witnesses had been ade-
quately advised of their right against self-incrimination.
According to the plurality, it was “apparent from the record

   confrontation’; (7) whether the trial judge’s determination rests on an eval-
   uation of the demeanor of the participants, the ‘atmosphere’ of the trial, or
   any other factors that similarly are not amendable to strict appellate review;
   (8) whether the trial judge granted the mistrial solely for the purpose of pro-
   tecting the defendant against possible prejudice; (9) whether the evidence
   presented by the prosecution prior to the mistrial suggested a weakness in
   the prosecution’s case (e.g., a witness had failed to testify as anticipated);
   (10) whether the jurors had heard enough of the case to formulate some ten-
   tative opinions; (11) whether the case had proceeded so far as to give the
   prosecution a substantial preview of the defense’s tactics and evidence; and
   (12) whether the composition of the jury was unusual.”
LaFave, 6 Criminal Procedure § 25.2(c) at 799-800.
Cite as 361 Or 205 (2017)	217

that no consideration was given to the possibility of a trial
continuance.” Jorn, 400 US at 487. Concluding that the trial
court’s decision did not meet the “manifest necessity” stan-
dard, the plurality affirmed dismissal of the information on
the ground of double jeopardy and barred a retrial of the
defendant.
	Although Jorn did not involve prosecutorial error,
the Court nevertheless cited its holding in Downum and dis-
cussed the significance of the lack of preparedness by the
government for trial in double-jeopardy cases. The plurality
also emphasized the importance of a defendant being able to
complete a trial with a jury that the defendant believed to be
favorably disposed to his or her position:
   “The trial judge must recognize that lack of preparedness
   by the Government to continue the trial directly implicates
   policies underpinning both the double jeopardy provision
   and the speedy trial guarantee. Cf. Downum v. United
   States, 372 US 734 (1963). Alternatively, the judge must
   bear in mind the potential risks of abuse by the defendant
   of society’s unwillingness to unnecessarily subject him to
   repeated prosecutions. Yet, in the final analysis, the judge
   must always temper the decision whether or not to abort
   the trial by considering the importance to the defendant
   of being able, once and for all, to conclude his confronta-
   tion with society through the verdict of a tribunal he might
   believe to be favorably disposed to his fate.”
Jorn, 400 US at 486.
	       In reaching its decision, the plurality rejected as
unsubstantiated by the record the government’s argument
that the trial court had ordered a mistrial solely for the
defendant’s benefit. Id. at 483. The plurality also cited prior
case law recognizing that the Double Jeopardy Clause does
not always guarantee a single trial for a given offense, as
in cases where reprosecution is necessary after a criminal
defendant’s conviction has been reversed on appeal. Id. at
484. However, the plurality differentiated between that
circumstance and reprosecution after a mistrial by a trial
court sua sponte:
   “For the crucial difference between reprosecution after
   appeal by the defendant and reprosecution after a sua
218	                                                State v. Moore

   sponte judicial mistrial declaration is that, in the first sit-
   uation, the defendant has not been deprived of his option
   to go to the first jury and, perhaps, end the dispute then
   and there with an acquittal. On the other hand, where the
   judge, acting without the defendant’s consent, aborts the
   proceeding, the defendant has been deprived of his ‘valued
   right to have his trial completed by a particular tribunal.’
   	   “* * * * *
   “Thus, where circumstances develop not attributable to
   prosecutorial or judicial overreaching, a motion by the
   defendant for mistrial is ordinarily assumed to remove
   any barrier to reprosecution, even if the defendant’s motion
   is necessitated by prosecutorial or judicial error. In the
   absence of such a motion, the Perez doctrine of manifest
   necessity stands as a command to trial judges not to fore-
   close the defendant’s option until a scrupulous exercise of
   judicial discretion leads to the conclusion that the ends of
   public justice would not be served by a continuation of the
   proceedings.”
Id. at 484-86 (internal citations and footnotes omitted).
	       We find the reasoning of Jorn and Downum persua-
sive, and, therefore, we will give those cases proper weight
in addressing the Article I, section 12, issue presented
here. See Cole, 286 Or at 424 (applying “flexible standard of
Arizona” and concluding that state “[not] required to show
that no other judge is available to continue the trial” when
mistrial ordered because trial judge ill in hospital).
	        With the above authority in mind, we now deter-
mine whether the state has met its burden of demonstrating
that the trial court’s mistrial order is consistent with the
standard of “manifest necessity.” The trial court concluded
that the circumstances of this case justified a mistrial under
the United States Supreme Court’s decision in Wade, a posi-
tion also adopted by the state on review. We disagree.
	       Wade involved a military court martial in wartime
Germany of a United States soldier accused of rape. After
the court martial had commenced, the commander of the
Third Army concluded that the tactical situation of his com-
mand and its distance from the trial site prevented the trial
from being completed within a reasonable timeframe. The
Cite as 361 Or 205 (2017)	219

charges against the defendant were withdrawn and later
reinstated for trial at a location more convenient for the wit-
nesses. The Court concluded that there was “manifest neces-
sity” for the reprosecution under the circumstances. Wade,
336 US 684. Later, in Downum, the Court stated that “the
tactical problems of an army in the field were held [in Wade]
to justify the withdrawal of a court-martial proceeding and
the commencement of another one on a later day.” Downum,
372 US at 736. We think that Wade—a case decided based
on tactical problems posed in a war zone—is inapposite to
this case where the state proceeded to trial without a key
witness and the trial court, after declining to exclude the
testimony of that witness, ordered a mistrial sua sponte over
defendant’s objection.7
	        As previously explained, whether a trial court rul-
ing is consistent with the federal “manifest necessity” stan-
dard depends on the unique circumstances presented in
that case. Washington, 434 US at 505; Somerville, 410 US at
462 (“manifest necessity” standard “abjures the application
of any mechanical formula by which to judge the propriety
of declaring a mistrial in the varying and often unique sit-
uations arising during the course of a criminal trial”); Jorn,
400 US at 480. Similarly, we think that whether the “man-
ifest necessity” standard is met under Article I, section 12,
likewise depends on the circumstances of each individual
case. After considering the unique circumstances here, two
factors lead us to conclude that the trial court’s mistrial
order did not meet the “manifest necessity” standard.
	        First, the state mistakenly proceeded to trial in this
case before identifying a key witness, Gunsolly, an insur-
ance investigator who—according to the prosecutor—would
testify that the fire that caused the victim’s death was not
accidental. The prospect of such testimony—raised well into
the state’s case-in-chief—went to the core of the case and
necessarily affected the parties’ theories and strategies. The
record shows that that serious mistake created the issue of
	7
       Wade might be most accurately characterized as a case where the test of
“manifest necessity” was met based on the physical necessity of a retrial in a
war zone. See Cole, 286 Or at 423 (distinguishing “physical necessity” from the
“necessity of doing justice” based on the duty of the court to “guard the adminis-
tration of justice”).
220	                                             State v. Moore

prejudice that the trial court sought to address by allowing
codefendant Golden’s motion for a mistrial and sua sponte
ordering a mistrial as to defendant. The record also shows
that the state was solely responsible for that mistake. That
factor weighs heavily in favor of defendant’s constitutional
argument. See Downum, 372 US at 734 (failure to bar sub-
sequent prosecution of defendant when state allowed jury to
be selected and sworn even though one of its key witnesses
was absent would allow trial court to exercise “unlimited,
uncertain, and arbitrary judicial discretion”).
	       Second, it is significant that the state examined—
and defense counsel cross-examined—eight witnesses for
the state prior to the mistrial. That fact presents a signif-
icant potential for prejudice to defendant and an unfair
advantage to the state. If the state is permitted to repros-
ecute defendant, it would then have an unfair opportunity
to further prepare its witnesses based on their previous
examination and cross-examination during the first trial.
See Cole, 286 Or at 426 (Linde, J., concurring) (where “wit-
nesses have been examined and cross-examined, including
perhaps the defendant himself, the mistrial might be much
more prejudicial,” and the state’s burden is arguably greater
when defendant prepared to continue with new judge).
	        In this case, the record is clear that defendant
wished to complete his trial with the jury selected, not-
withstanding the prospect of new evidence or his codefen-
dant’s motion for a mistrial. Defendant’s counsel stated to
the court: “We don’t want a mistrial. We like this jury; we
like how we’re doing.” Defendant also personally stated to
the court that he wanted to continue with the trial. The
fact that defendant and his counsel believed that the jury
was favorably disposed to his case and objected to a mis-
trial is an important consideration here. See Jorn, 400 US
at 486 (judge “must always temper the decision whether or
not to abort the trial by considering the importance to the
defendant of being able, once and for all, to conclude his con-
frontation with society through the verdict of a tribunal he
might believe to be favorably disposed to his fate”).
	       Thus, we hold, as a matter of law, that the trial court’s
mistrial order violated defendant’s right to be free from a
Cite as 361 Or 205 (2017)	221

second prosecution for the same offense under Article I, sec-
tion 12.8 Under the circumstances presented, the sua sponte
mistrial ordered by the trial court over defendant’s objection
was outside the constitutional bounds of discretion and con-
stituted legal error. We do not reach our holding today as a
sanction for prosecutorial error, but rather to protect defen-
dant against the harassment, embarrassment, and risk of
successive prosecutions as guaranteed by Article I, section
12. See Kennedy, 295 Or at 272-73 (expressing constitutional
objective of Article I, section 12).
	        We reject the state’s first argument that the trial
court’s mistrial order was necessary to eliminate the poten-
tial prejudice to defendant attributable to the court admit-
ting new evidence after prosecutorial error. We also reject
the state’s second argument that defendant’s objection to a
mistrial was equivocal because defendant suggested to the
court that defendant would not be able to proceed with the
trial even if the court allowed a continuance. The record
does not support the state’s argument. The record shows
that defendant did not request a continuance or bring up
the subject of a continuance when the court discussed with
counsel the prejudicial effect on both defendants of admit-
ting the new evidence. The state first raised the possibility
of a continuance to address the problem. Defendant unequiv-
ocally took the position that the new evidence should not
be admitted because the prejudice to defendant could not
be effectively addressed by a continuance. Defendant stated
that the nature of the new evidence was such—at that point
in the trial—that “a continuance will not be the cure” in
support of his argument to exclude the evidence. Defendant
did not, however, state that he would not be able to proceed
with the trial even if the court admitted the evidence. In
addition, after a lengthy discussion about whether the prej-
udice to defendant could be effectively addressed, defendant
told the court: “And just so we’re clear, the last—we do not
want a mistrial.” The only reasonable inference that could
be drawn from that statement is that, even if the trial court
admitted the challenged evidence, defendant nevertheless
wanted to proceed with the trial. In sum, the record shows
	8
       As a result, we do not find it necessary to address defendant’s federal con-
stitutional claim.
222	                                           State v. Moore

that defendant clearly took the position that (1) the new evi-
dence should not be admitted because—if admitted—the
resulting prejudice to defendant could not be effectively
cured; and (2) defendant objected to a mistrial. Defendant
was entitled to make both arguments, and he did so.
                       CONCLUSION
	        We conclude that the trial court’s sua sponte mis-
trial order violated defendant’s right to be free from a second
prosecution for the same offense under Article I, section 12,
of the Oregon Constitution. The trial court’s mistrial order
and the court’s denial of defendant’s motion to dismiss the
indictment with prejudice constituted fundamental legal
error. This court, therefore, will provide the mandamus
relief requested by defendant to enforce a clear legal right.
Frankel, 322 Or at 376 (mandamus relief available to avoid
reprosecution when defendant’s Article I, section 12, rights
violated). We direct the issuance of a peremptory writ of
mandamus requiring the trial court to dismiss the indict-
ment with prejudice.
	       Peremptory writ of mandamus to issue.
