High court weighs whether defense counsel’s opening justified mistrial in Commonwealth v. Gaston

At oral argument in Commonwealth v. Elena Gaston, the Supreme Judicial Court considered whether a trial judge properly declared a mistrial after a defense attorney’s opening statement effectively conceded factual guilt and, the judge found, was presented without consultation with the defendant.

The question for the justices focused on a narrow legal point, the defendant’s counsel told the court: whether there was a “manifest necessity” to stop the trial when the judge concluded defense counsel’s opening undercut the only articulated factual defense and was delivered without consultation. “This case presents an issue that this court has never confronted, and that is whether a potential future claim of ineffective assistance can create a manifest necessity for a mistrial,” defense counsel Anne Rousseff told the court.

Rousseff argued the trial judge improperly inferred a total lack of consultation from terse answers on the record, and that the…