State v. Blackmon

“When improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal. State v. Kennedy, 295 Or 260, 276, 666 P2d 1316 (1983).

Defendant appealed after a trial court denied his motion to dismiss charges after a second mistrial.The mistrial occurred when a court clerk gave the jury an exhibit that showed the defendant’s prior conviction, which was not supposed to be a part of their consideration. The State responded that while what the clerk did was prejudicial, the record did not show her actions were improper and prejudicial. “When improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal. State v. Kennedy, 295 Or 260, 276, 666 P2d 1316 (1983). The court reasoned that what the clerk did was careless, the evidence in the record did not show the clerk knowingly gave the jury the prohibited information or acted with indifference to the consequences and gross negligence by itself does not live up to the standard established in Kennedy. The petition for writ of mandamus is denied.