Does Double Jeopardy Clause Bar Retrial ?

In Oregon v. Kennedy, 456 U.S. 667 (1982), the defendant, Bruce Kennedy, was charged with the theft of an oriental rug. During the trial in an Oregon court, a "crucial" witness for the State testified as to the value and identity of the rug. State v. Kennedy, 49 Ore. App. 415, 619 P.2d 948, 949 (Or. Ct. App. 1980), rev'd, 456 U.S. 667 (1982). In an attempt to establish bias on cross-examination, the defense elicited testimony from the witness that he had initiated criminal charges against the defendant. On redirect examination, the state embarked on a line of questioning aimed at establishing the witness's reasoning for filing the complaint. Defense objections to these inquiries were sustained. The colloquy that followed, however, led to an immediate grant of the defendant's motion for mistrial: PROSECUTOR: Have you ever done business with the Kennedys? WITNESS: No I have not. PROSECUTOR: Is that because he is a crook? (Id.) Thereafter, Kennedy moved to dismiss the charges against him on the ground of double jeopardy. At a hearing on that motion, the prosecutor from the first trial called herself as a witness. Based on her testimony, the hearing court found that the prosecutor had not intended to cause a mistrial. 619 P.2d at 949 & n.1. Consequently, the state was permitted to hold a second trial, at which Kennedy was convicted. The Oregon Court of Appeals reversed. 619 P.2d at 950. Although it acknowledged that it was bound by the hearing court's finding as to the prosecutor's intent at the first trial, it concluded that the prosecutor's conduct constituted "overreaching," thus barring Kennedy's retrial on the ground of double jeopardy. 619 P.2d at 949-50. In arriving at its conclusion, the court stated: The general rule is said to be that the double jeopardy clause does not bar reprosecution, "where circumstances develop not attributable to prosecutorial or judicial overreaching, even if defendant's motion is necessitated by prosecutorial error." United States v. Jorn, 400 U.S. 470 (1971). However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is "motivated by bad faith or undertaken to harass or prejudice" the defendant. United States v. Dinitz, 424 U.S. 600 (1976). Accord, State v. Rathbun, 37 Ore. App. 259, 586 P.2d 1136 (1978), reversed on other grounds, 287 Ore. 421, 600 P.2d 392 (1979). 619 P.2d at 949. The Oregon Court of Appeals considered the prosecutor's comment that the defendant was a "crook" to be "a direct personal attack on the general character of the defendant." Id. It then opined: We think the prosecutor is charged with the knowledge that the comment--which we must treat as intentional, at least in the sense that it appears it was made deliberately and after some thought--was certain to interfere with the trial process. Defendant was then faced with a Hobson's choice--either to accept a necessarily prejudiced jury, or to move for a mistrial and face the process of being retried at a later time. There will be many circumstances in which the decision, in the face of this dilemma, to seek a mistrial will be deemed the equivalent of a waiver of a defendant's prior jeopardy rights. See United States v. Jorn, supra, 400 U.S. at 485. However, this case of flagrant overreaching lies outside that general rule. 619 P.2d at 950. The Supreme Court rejected the Oregon appellate court's reasoning. It determined that because the Oregon hearing court "found, and the Oregon Court of Appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause." Kennedy, 456 U.S. at 679. In arriving at its conclusion, the Supreme Court noted the important distinction between the termination of a trial over the defendant's objection and "a mistrial declared at the behest of the defendant." It said: "Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the 'manifest necessity' standard . . . ." 456 U.S. at 672 (citing United States v. Perez, 22 U.S. 579 (1824)). Where the defendant requests the mistrial, however, "the defendant himself has elected to terminate the proceedings against him, and the 'manifest necessity' standard has no place in the application of the Double Jeopardy Clause." Id. (citing Dinitz, 424 U.S. at 607-10). The Court then explained: Our cases . . . have indicated that even where the defendant moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial. The circumstances under which respondent's first trial was terminated require us to delineate the bounds of that exception more fully than we have in previous cases. 456 U.S. at 673 (citing DiFrancesco, 449 U.S. at 130; Dinitz, 424 U.S. at 611; Jorn, 400 U.S. at 485; United States v. Tateo, 377 U.S. 463 (1964)). The Supreme Court expounded upon the "narrow exception," stating: "The Double Jeopardy Clause bars retrials where 'bad-faith conduct by judge or prosecutor,' threatens the 'harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant." United States v. Dinitz, 424 U.S. at 611. The language just quoted would seem to broaden the test from one of intent to provoke a motion for a mistrial to a more generalized standard of "bad faith conduct" or "harassment" on the part of the judge or prosecutor. It was upon this language that the Oregon Court of Appeals apparently relied in concluding that the prosecutor's colloquy with the expert witness in this case amount to "overreaching." 456 U.S. at 674. Wary of widening the test, the Supreme Court settled on "a standard that examines the intent of the prosecutor," reasoning that such a standard "merely calls for the trial court to make a finding of fact." Id. at 675. Further, it said: Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. When it is remembered that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system, but in the federal court system on habeas corpus as well, the desirability of an easily applied principle is apparent. Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. . . . Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. 456 U.S. at 675-76 . In the following paragraph, the Supreme Court explicated its holding: We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Id. at 679 .