Does the double jeopardy clause bar a defendant from seeking a retrial if there is a mistrial?

These decisions recognize that the double jeopardy clause does not confer upon a defendant a license to take undue advantage of the contradictory possibilities which arise when a mistrial is declared. I would not construe the double jeopardy clause so as to permit a defendant who is ready to sacrifice his interest in reaching an existing jury in exchange for a dismissal on double jeopardy grounds to obviate the need for his reaching any jury at all. Such a defendant might be all too willing to sit by silently and refrain from bringing to the trial court's attention alternative solutions. ⁴ I see nothing in the double jeopardy bar which either requires that this choice be left to the defendant or which relieves him of the normal obligation to make a timely objection to an adverse ruling by the trial court. On the contrary, requiring the defendant to assert his right to have his guilt decided by the existing jury will assure that a subsequent double jeopardy dismissal in fact does serve to vindicate the right asserted. Such a requirement moreover would tend to alleviate the problems which underlay the holding of Gori v. United States, 367 U.S. 364, 369 (1961), that a mistrial "granted in the sole interest of the defendant" does not necessarily bar all retrial. Protecting a defendant's interests through resort to a mistrial would be much less a matter of navigating "a narrow compass between Scylla and Charybdis", id., if the defendant could be relied upon, and indeed required, to participate in the determination. ⁵

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