Supreme Judicial Court of Massachusetts Finds Manifest Necessity for Declaring a Mistrial in “Most Egregious Pitch for [Jury] Nullification” Ever

When a judge declares a mistrial, there must be “manifest necessity” for declaring a mistrial or else a criminal defendant cannot be prosecuted again for the same crime under the Double Jeopardy Clause of the Fifth Amendment. Usually, that “manifest necessity” comes from something like a hung jury or prosecutorial misconduct. But in Gaston v. Commonwealth, 2025 WL 1678894 (Mass. 2025), the manifest necessity was based on defense counsel’s opening statement.

In Gaston, Elena Gaston was charged with trafficking of persons for sexual servitude, conspiracy to do the same, deriving support from prostitution, and money laundering. Specifically, 

The Commonwealth allege[d] that the defendant ran an escort service in which she arranged for her female employees to go on “dates” with male clients. The Commonwealth further allege[d] that, although the defendant undertook efforts to make her business appear legitimate, she was, in fact, knowingly arranging for her employees to provide sexual services to customers on these dates, in exchange for a fee.

At the start of trial, defense counsel gave

an opening statement in which he conceded that the defendant had knowingly arranged for her employees to have sex with men for money, but he invited the jury to consider factors unrelated to the legal elements of the charged crimes during their deliberations. Counsel emphasized that the defendant did not run her business in an exploitative fashion like a traditional “pimp” and did not use force or coercion on any of her employees. Defense counsel alluded to the recent United States Supreme Court decision ruling that there is no constitutional right to abortion,…noted that other states had passed laws in response to that decision, and implored the jury to “respect the decision of [the defendant] to have a woman in control of her own body.” Defense counsel also emphasized that “not a single one” of the men who paid for sex had been similarly charged, and he finished his opening statement by stating: “But I guess that’s the way it is. The woman gets the wrong end of the stick, and…I submit to you that says an awful lot about this prosecution.”

In response, the prosecution moved for a mistrial. The judge then noted that this “was perhaps the most egregious pitch for [jury] nullification the court had ever heard,” but did not immediately declare a mistrial. Instead, he heard arguments from both sides before granting the prosecution’s motion.

When the prosecution recharged the defendant with the same crimes, she moved to dismiss, citing Double Jeopardy. The Supreme Judicial Court of Massachusetts denied the motion finding there was manifest necessity to declare a mistrial because

 trial counsel’s plainly inappropriate behavior constituted ineffective assistance of counsel. Defense counsel resorted to a wholly improper opening statement, in which he conceded factual guilt and invited the jury to disregard the judge’s instructions on the elements of sex trafficking. Whether or not that decision was strategic, it was manifestly unreasonable. See Commonwealth v. Fernette, 398 Mass. 658, 670 n.23, 500 N.E.2d 1290 (1986) (“We recognize that jurors may return verdicts which do not comport with the judge’s instructions. We do not accept the premise that jurors have a right to nullify the law on which they are instructed by the judge”). At the same time, by conceding that the defendant created an escort service for the express purpose of enabling her employees to perform sexual services for a fee, defense counsel deprived the defendant of a substantial ground of defense. During her guilty plea colloquy, the defendant was extremely reticent to agree that she had knowingly arranged for her employees to engage in sexual activities with clients. Further, as the Commonwealth conceded in its own opening statement, the jury was going to hear evidence that the defendant took steps to operate her escort service as an ostensibly legitimate business. Thus, as the trial judge correctly observed, defense counsel’s opening statement was not simply improper, but detrimental to the defendant’s ability to pursue an available defense; by immediately conceding that the defendant knew her employees were engaged in commercial sex, and instead advocating for jury nullification, defense counsel not only invited “a strong judicial rebuke” and curative instruction, but also “likely fatally undercut[ ] any effective pursuit at trial of the one factual defense that appeared open to the defendant,” i.e., that she was unaware that her employees were engaged in commercial sexual activities.

-CM