In the Supreme Court of Georgia

Decided: January 18, 2023

S22A0870. HIGHTOWER v. THE STATE.

 MCMILLIAN, Justice.

Michelle Antoinette Hightower was charged with malice 

murder and other crimes in connection with the shooting death of 

Michael McGee on September 5, 2017. Hightower’s trial on these 

charges began in the Superior Court of Fulton County on March 9, 

2020, and four days later, on March 13, after the Chief Judge of the 

Atlanta Judicial Circuit issued an order declaring a judicial 

emergency due to the continued transmission of the COVID-19 

virus, the trial court declared a mistrial in Hightower’s case, over 

defense counsel’s objections. Hightower subsequently filed a plea in 

bar and motion to dismiss the indictment (collectively, the “Plea in 

Bar”), asserting that further prosecution of her case was barred by 

the double jeopardy clauses of the state and federal constitutions 
2

because there was no manifest necessity to declare a mistrial and 

because the trial court did not exercise its discretion or consider 

reasonable alternatives prior to declaring the mistrial. Following a 

hearing, the trial court denied the Plea in Bar on May 21, 2021, and

Hightower appeals.1 Because we conclude that the trial court acted 

within its discretion in determining that there was a manifest 

necessity for a mistrial, we affirm.

1. Voir dire in Hightower’s trial began on the morning of 

Monday, March 9, 2020, and was completed the next day, on March 

10. The jury was then selected and sworn. The same day, counsel 

gave their opening statements, and the State presented the 

testimony of three witnesses. On Wednesday, March 11, the trial 

court heard argument on several motions, and the State presented 

two additional witnesses. The parties also conducted voir dire of a 

proposed expert witness whom the State wished to call to rebut

 1 Although Hightower originally filed her appeal in 2021, at Hightower’s 

request, the case was remanded to allow for completion of the record, and it 

was re-docketed under the current case number when it returned to this Court.

The case was orally argued on August 23, 2022.
3

Hightower’s defense of battered-person syndrome, and the witness 

was qualified as an expert. The trial court recessed the trial 

proceedings for the next day, Thursday, March 12, to allow the 

State’s expert to interview Hightower and to allow the parties to 

prepare and exchange expert reports on the battered-person 

defense. 

That evening, Christopher S. Brasher, chief judge of both the

Atlanta Judicial Circuit and the Superior Court of Fulton County,

sent an email notifying all Fulton County superior and state court 

judges, the Fulton County District Attorney’s office, and the county’s

Public Defender’s office,2 among others, of his intention to issue an 

order declaring a judicial emergency effective Monday, March 16, 

which would “suspend the calling and empaneling of all jurors and 

the conduct of all jury trials” in Fulton County.

Chief Judge Brasher sent another email at 8:20 a.m. on Friday, 

March 13, attaching a copy of his order, which was entered about an 

 2 Hightower was represented by the Public Defender’s office at trial.
4

hour later, at 9:23 a.m. The order, citing OCGA § 38-3-61,3 declared 

a judicial emergency in the Atlanta Judicial Circuit, which “is 

composed of the County of Fulton.” OCGA § 15-6-1 (3). This 

declaration was based on a “serious health emergency” and a 

determination that the emergency “substantially endangers or 

infringes upon the normal functioning of the judicial system as it 

relates to jury service, and any non-essential matters, unless they 

can be conducted via video or teleconferencing.” The order defined 

the nature of the emergency as “the continued transmission of 

Coronavirus/COVID-19 throughout Fulton County and the potential 

infection of those who are required to appear in our courts and 

interact with large groups due to jury service.” The order further 

provided that:

[T]he undersigned makes this declaration of a 

judicial emergency affecting all courts and clerk’s offices 

in Fulton County as it relates to jury service, including 

 3 OCGA § 38-3-61 (a) empowers an “authorized judicial official” to declare 

judicial emergencies, and OCGA § 38-3-60 (1) (B) defines “[a]uthorized judicial 

official” to include “[a] chief judge of a Georgia superior court judicial circuit[.]” 

Chief Judge Brasher signed the Fulton County Order in both his capacities as 

chief judge of the Superior Court of Fulton County and chief judge of the 

Atlanta Judicial Circuit.
5

grand jury service and any non-essential matters, unless 

they can be conducted via video or teleconferencing. 

Accordingly, IT IS THE ORDER of the Court that no 

jurors shall report and no jury trials shall be held for a 

period of thirty (30) days from the date of the entry of the 

Order (the “Fulton County Order”).

The proceedings in Hightower’s case later recommenced at 9:51 

a.m., outside the presence of the jury, and after addressing 

preliminary evidentiary matters, the trial court announced that it

would be taking judicial notice of the Fulton County Order and that 

it was also anticipating a similar statewide order from then-Chief 

Justice Harold D. Melton of this Court. As a result, the trial court 

said it anticipated that it would be declaring a mistrial in 

Hightower’s case and asked counsel if they wanted to “place 

something on the record.”

The State had no objections, but Hightower’s counsel objected 

to the mistrial and asked the court to consider less drastic 

alternatives. Defense counsel proposed that the trial continue 

through the weekend with the belief that it could be concluded by 

Sunday “before the judicial emergency has been declared.” In the 
6

alternative, defense counsel suggested that the trial simply be 

continued until it could be reconvened with the same jury and a new 

trial date set “once the judicial emergency is over.” After the jurors 

returned to the courtroom, the trial court informed them of the 

Fulton County Order declaring a judicial emergency,4 and 

announced that it was declaring a mistrial based on the judicial 

emergency. The trial court then released the jury from further 

service.5

 4 The Court explained to the jury that

[t]he existence of the judicial emergency in Fulton County is 

related to the continued transmission of the coronavirus, COVID19 virus, throughout Fulton County and the potential infection of 

those who are required to appear in our courts and interact with 

large groups due to jury service including grand jury service or 

other large nonessential calendars. 

5 The then-Chief Justice of this Court issued the first in a series of orders 

declaring a statewide judicial emergency the next day, on Saturday, March 14, 

2020. That order provided, in pertinent part:

[T]rials in any criminal case for which a jury has been empaneled 

and the trial has commenced as of the date of this order shall 

continue to conclusion, unless good cause exists to suspend the 

trial or declare a mistrial. The decision whether to suspend a 

criminal trial or declare a mistrial rests with the judge presiding 

over the case.

Although this statewide order contradicted the Fulton County Order by 

allowing criminal trials in progress to continue to conclusion, it had not yet 

been issued when the trial court declared the mistrial.
7

The following week, on March 19, 2020, the trial court entered 

a written order regarding the grant of the mistrial in Hightower’s 

case, which recited the events surrounding the Fulton County 

Order, and stated:

By declaring a mistrial in this case, the Court declares 

explicitly that a manifest necessity warranted the 

declaration of the mistrial in this case, specifically the 

existence of a judicial emergency in Fulton County. 

Further, this Court specifically declares that the entry of 

the order of mistrial, in this case, is designed to ensure 

that the ends of justice will be served.

Hightower filed the Plea in Bar over one year later, on April 7, 

2021. After an evidentiary hearing, the trial court denied the Plea

in Bar in a written order entered May 21, 2021. That order recited 

that in making the decision to declare a mistrial, the trial court was 

aware that “a judicial emergency was being declared due to the 

[c]oronavirus/COVID-19”; that COVID-19 “was highly contagious 

and could cause severe illness or death to those who contracted it”; 

and that “medical professionals in the media were urging people to 

stay at home to avoid contracting and spreading the virus to others.”

The order also said that the trial court further “considered the fact 
8

that the trial was not likely to conclude by the end of the day and 

that the courtroom did not have adequate infrastructure in place to 

prevent the contraction or spread of the virus.” Based on these 

factors, the trial court concluded “that a high degree of necessity 

existed such that a mistrial was warranted.”

2. Hightower asserts on appeal that her Plea in Bar should 

have been granted because the trial court erred in declaring a 

mistrial sua sponte over her objection without carefully exercising 

sound discretion, without considering less drastic alternatives, and 

without a manifest necessity.

“The Double Jeopardy Clause of the Fifth Amendment, which 

applies to the states through the Fourteenth Amendment, says ‘[n]o 

person shall be . . . subject for the same offence to be twice put in 

jeopardy of life or limb[.]’” Meadows v. State, 303 Ga. 507, 510 (2) 

(813 SE2d 350) (2018); U. S. Const. Amend. V. See also Ga. Const. 

of 1983, Art. I, Sec. I, Par. XVIII; OCGA § 16-1-8 (a).6 “Jeopardy 

 6 The double jeopardy clause of the Georgia Constitution provides: “No 

person shall be put in jeopardy of life or liberty more than once for the same 
9

attaches when the jury has been impaneled and sworn.” Blake v. 

State, 304 Ga. 747, 749 (2) (822 SE2d 207) (2018). But “[e]ven after

jeopardy has attached, trial courts may declare a mistrial over the 

defendant’s objection, without barring retrial, whenever, in their 

opinion, taking all the circumstances into consideration, there is a 

manifest necessity for doing so.” Rios v. State, 311 Ga. 639, 643 (2)

(859 SE2d 65) (2021) (citation and punctuation omitted). See also 

 

offense except when a new trial has been granted after conviction or in case of 

mistrial.” Art. I, Sec. I, Par. XVIII. Georgia also has a statutory prohibition 

against multiple prosecutions for the same conduct. OCGA § 16-1-8 (a) 

provides: 

A prosecution is barred if the accused was formerly 

prosecuted for the same crime based upon the same material facts, 

if such former prosecution:

(1) Resulted in either a conviction or an acquittal; or

(2) Was terminated improperly after the jury was impaneled 

and sworn or, in a trial before a court without a jury, after the first 

witness was sworn but before findings were rendered by the trier 

of facts or after a plea of guilty was accepted by the court. 

We note that 

[i]n determining whether a second trial is permitted on the same 

charges following a mistrial, our case law has treated all forms of 

double jeopardy claims, whether under the Constitution of the 

United States, under the Georgia Constitution, or under the 

Georgia Code, in a manner consistent with case law from the 

United States Supreme Court regarding the Fifth Amendment[.]

Carman v. State, 304 Ga. 21, 25 (2) (815 SE2d 860) (2018). And Hightower does 

not argue that a different analysis should apply under the Georgia 

Constitution. 
10

U.S. v. Dinitz, 424 U.S. 600, 606-07 (II) (96 SCt 1075, 47 LE2d 267)

(1976) (if “a mistrial has been declared without the defendant’s 

request or consent,” “the question whether under the Double 

Jeopardy Clause there can be a new trial . . . depends on whether 

‘there is a manifest necessity for the (mistrial)’” (citation omitted)).

The manifest necessity standard requires a “high degree of 

necessity” to grant a mistrial. Laguerre v. State, 301 Ga. 122, 124 

(799 SE2d 736) (2017) (citation and punctuation omitted). See also 

Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003)

(“Manifest necessity can exist for reasons deemed compelling by the 

trial court, especially where the ends of substantial justice cannot 

be attained without discontinuing the trial.” (citation and 

punctuation omitted)). “Whether such necessity exists is to be 

determined by weighing the defendant’s right to have his trial 

completed before the particular tribunal against the interest of the 

public in having fair trials designed to end in just judgments; and 

the decision must take into consideration all the surrounding 

circumstances.” Laguerre, 301 Ga. at 124 (punctuation and citation 
11

omitted).

Therefore, in the absence of prosecutorial misconduct, “the 

decision whether to grant a mistrial is reserved to the ‘broad 

discretion’ of the trial judge.” Carman v. State, 304 Ga. 21, 27 (2) (a)

(815 SE2d 860) (2018) (punctuation omitted and emphasis in 

original), quoting Renico v. Lett, 559 U.S. 766, 774 (II) (130 SCt 1855, 

176 LE2d 678) (2010). See also Laguerre, 301 Ga. at 125; Tubbs, 276 

Ga. at 754-55 (3).

The decisions of this Court and the U.S. Supreme Court 

emphasize that whether the required degree of necessity 

for a mistrial has been shown is a matter best judged by 

the trial court. The propriety of declaring a mistrial in the 

varying and often unique situations arising during the 

course of a criminal trial cannot be determined by the 

application of any mechanical formula.

Harvey v. State, 296 Ga. 823, 831-32 (2) (a) (770 SE2d 840) (2015) 

(citations and punctuation omitted) (quoting Illinois v. Somerville, 

410 U.S. 458, 462 (93 SCt 1066, 35 LE2d 425) (1973)). And “great 

deference is accorded to a decision that a mistrial was necessary.” 

Blake, 304 Ga. at 750 (2).

Although trial courts should “give careful, deliberate, and 
12

studious consideration to whether the circumstances demand a 

mistrial, with a keen eye toward other, less drastic, alternatives, a

court’s rejection of other alternatives is a proper exercise of the 

court’s discretion—and not an abuse—if reasonable judges could 

differ about the proper disposition.” Blake, 304 Ga. at 749 (2). See 

also Harvey, 296 Ga. at 832 (2); Tubbs, 276 Ga. at 754-55 (3). A trial 

court “is not required to make explicit findings of manifest necessity 

nor to articulate on the record all the factors which informed the 

deliberate exercise of his discretion,” but the record must at least 

“show that the trial court actually exercised its discretion.” Blake, 

304 Ga. at 749 (2) (punctuation and citation omitted). See also 

Laguerre, 301 Ga. at 125.

Hightower argues that the trial court abused its discretion in 

determining that there was a manifest necessity to declare a 

mistrial and in failing to consider less drastic alternatives. She 

asserts that the trial court based its mistrial decision, not on any 

problem with her trial, but rather on the Fulton County Order and

its underlying concerns for “community safety.” Hightower asserts
13

that such concerns are unrelated to any problem that occurred at 

her trial and therefore not appropriate to consider in determining 

whether to grant a mistrial.

However, in considering the issue of double jeopardy, the 

United States Supreme Court has recognized that considering the 

health of trial participants can be integral to conducting a criminal 

trial. The Court has acknowledged that

a criminal trial is, even in the best of circumstances, a 

complicated affair to manage. The proceedings are 

dependent in the first instance on the most elementary 

sort of considerations, e.g., the health of the various 

witnesses, parties, attorneys, jurors, etc., all of whom 

must be prepared to arrive at the courthouse at set times.

United States v. Jorn, 400 U.S. 470, 479-80 (II) (91 SCt 547, 27 LE2d 

543) (1971). Thus, the Supreme Court concluded that application of 

a mechanical rule barring retrial whenever a jury is discharged 

without a defendant’s consent would be unworkable; rather, “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 trials designed to end in just judgments.” Id. at 480
14

(II) (citation and punctuation omitted). See also Arizona v. 

Washington, 434 U.S. 497, 505 (II) (98 SCt 824, 54 LE2d 717) (1978)

(“Because of the variety of circumstances that may make it 

necessary to discharge a jury before a trial is concluded,” which “do 

not invariably create unfairness to the accused,” a defendant’s 

“valued right to have the trial concluded by a particular tribunal is 

sometimes subordinate to the public interest in affording the 

prosecutor one full and fair opportunity to present his evidence to 

an impartial jury.”). 

Moreover, we do not view the trial court’s decision to declare a 

mistrial in hindsight, but rather from the court’s perspective at the 

time it exercised its discretion. See Harvey v. State, 296 Ga. 823, 833 

(2) (b) (770 SE2d 840) (2015) (“[T]he question before us is not 

whether the trial court exercised its discretion to grant a mistrial 

with care and full deliberation or whether, with the benefit of 

hindsight, we would say that a mistrial was necessary. Our task is 

only to decide whether the trial court abused its broad discretion.”); 

Tankersley v. Stepp, 266 Ga. 892, 892 (1) (471 SE2d 882) (1996) (trial 
15

court did not abuse its discretion in denying a continuance or 

mistrial where witness “evidenced an inability to respond” to crossexamination questions, even though hindsight may have revealed 

that witness had a serious illness during trial).

At the time the trial court declared a mistrial in this case, the 

COVID-19 pandemic had created an unexpected and unprecedented 

global health crisis, which posed a potential threat to the health of

the parties, including the defendant, witnesses, jurors, counsel, and 

court personnel required to appear in court and, as the Fulton 

County Order stated, “substantially endanger[ed] or infringe[d]

upon the normal functioning of the judicial system as it relates to 

jury service.” Hightower’s trial took place early in the pandemic,

when very little was understood about the nature or spread of the 

COVID-19 virus, understandably prompting caution by public 

officials in addressing the crisis based on the circumstances in the 

surrounding area. The Fulton County Order declared that an 

emergency existed based on “the continued transmission of 

Coronavirus/COVID-19 throughout Fulton County.” 
16

The trial court was also aware that health issues already had 

arisen among the participants in Hightower’s trial. On Tuesday, 

March 10, one juror informed the court that she was concerned she 

had “strep” as she had a sore throat that had “progressively gotten 

worse,” and the State informed the trial court that one of its 

witnesses called to report that she had “flu-like” symptoms that 

were “getting worse.”7 These circumstances, demonstrate that, 

contrary to Hightower’s argument, community health concerns 

potentially arising from COVID-19 presented a problem for 

Hightower’s trial. Moreover, the record belies Hightower’s assertion 

that the trial court abused its discretion by not considering less 

drastic alternatives. Before declaring a mistrial, the trial court 

informed the parties of the Fulton County Order and that it was 

 7 The juror volunteered to visit an urgent care facility, and the trial court 

accepted her offer, asking the juror to give the court an update on her condition. 

In reviewing the record on appeal, we could find no further mention of the juror 

in the trial transcript. As to the State’s witness, the trial court directed the 

State to inform the witness that she was to honor the subpoena served upon 

her. The State did not call the ailing witness to testify before the mistrial was 

declared on March 13, but the prosecutor represented that day that the State 

believed that it would be able to present the witness’s testimony in court 

although no date was given for the witness’s availability.
17

anticipating declaring a mistrial, but it nonetheless solicited

argument from counsel on the matter. The State raised no objection, 

but the defense objected and was given an opportunity to argue the 

issue. Defense counsel suggested two options: (1) holding the trial 

over the weekend to be completed “before the judicial emergency has 

been declared” on Monday, March 16, and (2) ordering a continuance 

until “the judicial emergency is over” when the trial could be reset 

before the same jury. After hearing and having the opportunity to 

consider the defense’s argument and suggestions, the trial court 

declared the mistrial.

We conclude that, under the circumstances present in this 

case, rejecting the defendant’s suggested alternatives was within 

the trial court’s discretion. The first alternative proposed a 

procedure that would have violated the Fulton County Order, which 

had already declared a judicial emergency as of March 13 and 

ordered that jurors should not appear for jury service for 30 days 
18

after that date.8 And nothing in this proposal would have addressed 

the concerns underlying that order for protecting the trial 

participants’ health. Moreover, implied in this suggestion is an 

acknowledgement by the defense that the trial could not have been

completed on March 13, and thus it represents an implicit

concession that proceeding with the trial that day would not have 

resulted in a verdict.9 The second alternative would have 

necessitated a continuance for an indefinite period of time. In light 

of the uncertainties surrounding the pandemic, no one could predict 

when the judicial emergency would be over, and there was no 

assurance that the same jury would have been available to continue 

the trial at an unknown point in the future. See Carman, 304 Ga. at 

33 (2) (b) (affirming denial of plea in bar following mistrial because 

 8 Although the statewide order issued on March 14 allowed criminal jury 

trials in progress “to continue to conclusion, unless good cause exists to 

suspend the trial or declare a mistrial,” as previously noted, the trial court did 

not have the benefit of this order in considering alternatives. And, in any event, 

the trial court found a manifest necessity to declare a mistrial, which is “good 

cause.”

9 At the beginning of Hightower’s trial, counsel estimated that the trial 

would take a week to complete, but the trial had already been recessed for one 

full day to allow the State’s expert to interview Hightower and the parties to 

exchange expert reports on her battered-person defense.
19

defense counsel was experiencing severe emotional distress 

following suicide of close family member and it was unclear when 

counsel would be able to return to try the case). See also State v. 

Smith, 465 N.J. Super. 515, 542 (III) (B) (ii) (244 A3d 296) (App. Div. 

2020) (affirming grant of mistrial where continuance or 

adjournment for an indefinite period was not feasible given the state 

of the COVID-19 pandemic).

Accordingly, given the COVID-related judicial emergency and 

30-day prohibition on jury service in Fulton County, and the 

potentially COVID-related health concerns among the trial’s 

participants, we conclude that the trial court did not abuse its 

discretion in declaring a mistrial based on manifest necessity or in 

denying Hightower’s Plea in Bar.10 See Carman, 304 Ga. at 33 (2) (b) 

(no abuse of discretion in declaring mistrial due to severe emotional 

 10 Although the existence of a judicial emergency based on the 

widespread transmission of the COVID-19 virus in Fulton County alone may 

have justified a mistrial and even without a showing that the trial participants 

were actually affected by the virus, we need not definitively decide that 

question in this case because participants in Hightower’s trial were also 

experiencing health concerns potentially related to the COVID-19 pandemic.
20

distress of defense counsel who had worked on the death penalty 

case for two years where backup counsel had only been involved for 

two weeks); Laguerre, 301 Ga. at 126 (no abuse of discretion in 

declaring mistrial after the trial court “reasonably decided that the 

jury unit likely could not be preserved in the circumstances”); 

Spearman v. State, 278 Ga. 327, 329 (1) (602 SE2d 568) (2004) (no 

abuse of discretion in declaring mistrial based on prosecution 

witness’s unavailability, which was due solely to an unforeseeable 

accident that occurred the weekend before the trial, where there was 

no evidence that prosecution knew of witness’s unavailability before 

beginning trial).

Judgment affirmed. All the Justices concur.