Pool v. Superior Court
In Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) the Arizona Supreme Court held that if prosecutor ial misconduct causes a mistrial, a retrial may be barred by Arizona's Double Jeopardy Clause, Arizona Constitution, ar ticle II, 10, under the following circumstances:
Mistrial is granted because of improper conduct or actions by the prosecutor; and
such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.
In determining whether the prosecutor acted intentionally, knowing his conduct to be improper, and in the pursuit of an improper purpose without regard to the possibility of causing a mistrial, the trial court looks to objective factors, including "the situation in which the prosecutor found himself, the evidence of actual knowledge and intent, ...any other factors which may give rise to an appropriate inference or conclusion," and "the prosecutor's own explanations of his 'knowledge' and 'intent.'" Id. at 108 n. 9, 677 P.2d at 271 n. 9.
In Pool, the defendant had been improperly charged under the theft statute and had testified to facts that the state could not rebut and which, if believed at all, would have required a not guilty verdict. 139 Ariz. at 100-01, 677 P.2d at 263-64.
The defendant apparently had dealt well with the prosecutor's initial questions "and the cross-examination moved from the irrelevant and prejudicial to the egregiously improper." Id. at 101, 677 P.2d at 264.
The prosecutor had then cross-examined the defendant about handling a gun while intoxicated and his drinking habits, characterized the defendant as a "'cool talker,' a knowledgeable witness and a 'good buddy' of defense counsel," asked the defendant for "his view of evidence received, ...his expectations of evidence that would be given," and asked him "to speculate on testimony which might have been given by someone who had claimed the fifth amendment privilege." Id. at 102-03, 109-11, 677 P.2d at 265-66, 272-74.
The prosecutor also re-asked questions after proper objections had been sustained. Id. at 102, 677 P.2d at 265.
The supreme court found the prosecutor's conduct was not "some isolated result of loss of temper, but the cumulative effect of a line of questioning in which the prosecutor posed numerous improper questions resulting in at least two bench conferences and one court admonishment." Id. at 106, 677 P.2d at 269.