WHEN DOUBLE JEOPARDY SHOULD BAR RETRIAL IN CASES OF PROSECUTORIAL MISCONDUCT: A CALL FOR BROADER STATE PROTECTIONS

In Oregon v. Kennedy, the Supreme Court held that the Double Jeopardy Clause does not bar the reprosecution of a defendant in cases in which prosecutorial misconduct causes the defendant to move for a mistrial. The Court established only one exception to this rule: If the prosecutor’s misconduct was intended to provoke the defendant into moving for a mistrial, the Double Jeopardy Clause bars the retrial of the defendant. The Kennedy standard thus allows for the retrial of a defendant in any case in which prosecutorial misconduct was aimed at securing the conviction of the defendant.

Since Kennedy was decided, only seven states have determined that their state double jeopardy clauses provide defendants with broader protection against retrial in cases of prosecutorial misconduct. Each provides that a defendant cannot be retried in cases of egregious or overly prejudicial prosecutorial misconduct, regardless of whether the misconduct was aimed at goading the defendant to move for a mistrial.

This Note argues that all states ought to adopt standards broader than Kennedy under their state constitutions. Broader standards better uphold the purpose of double jeopardy by more rigorously protecting defendants’ rights while also accommodating the interests of society in preventing crime. Additionally, this Note argues that lower courts in the seven states that have adopted broader standards have not struggled to apply these standards, and the Supreme Court’s concern that judges will not grant mistrials under broader standards has not been borne out by experience.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2022, Columbia Law School. The author would like to thank Professor Daniel Richman for his guidance and the staff of the Columbia Law Review for their insightful editorial assistance.

Introduction

In 1983, Fernando Melchor-Gloria was convicted of second-degree murder for the death of Juan Mena, 1 Melchor-Gloria v. State, 660 P.2d 109, 110 (Nev. 1983). who was stabbed to death inside a room at the Grand Hotel in Reno, Nevada. 2 Mistrial Declared in Murder Case, Reno Evening Gazette, Dec. 13, 1979, at 21. At the heart of the prosecution’s case against Melchor-Gloria were several incriminating statements that he made while being interrogated by the police. 3 See Melchor-Gloria, 660 P.2d at 111. The police had failed to read Melchor-Gloria his full Miranda rights before this interrogation began, 4 See id. The Fifth Amendment requires that criminal suspects in police custody be informed of their right to silence—including their right to refuse to answer questions or provide information to law enforcement—and their right to obtain an attorney during police interrogations. See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966) (“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”). however, so these statements were inadmissible at trial. 5 See Miranda, 384 U.S. at 479 (“[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”). Despite previously discussing the inadequacy of Melchor-Gloria’s Miranda warnings with defense counsel and having transcripts of the interrogation in which the deficiencies were clear, the prosecutor referenced these incriminating statements during his opening argument to the jury. 6 Melchor-Gloria, 660 P.2d at 111. In response, Melchor-Gloria moved for a mistrial, and the judge granted the motion without prejudice to the prosecution. 7 Id.

Melchor-Gloria then moved to bar retrial under the Double Jeopardy Clause of the United States or Nevada Constitutions. 8 Id. The federal Double Jeopardy Clause guarantees that “[n]o person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb.” 9 U.S. Const. amend. V. Generally, in cases in which the defendant moves for or consents to the mistrial, a retrial is not barred by double jeopardy. 10 See infra section I.B. Melchor-Gloria argued, though, that retrial ought to be barred because the mistrial was caused by prosecutorial misconduct. 11 Melchor-Gloria, 660 P.2d at 111.

On appeal, the Nevada Supreme Court applied the Supreme Court’s test from Oregon v. Kennedy to determine whether the federal Double Jeopardy Clause barred the retrial of Melchor-Gloria. 12 Id. at 111–12. Kennedy affirmed the “general rule” that in cases in which the defendant moves for a mistrial, “the double jeopardy clause does not bar reprosecution.” 13 Oregon v. Kennedy (Kennedy I), 456 U.S. 667, 670 (1982) (internal quotation marks omitted) (quoting United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion)). Kennedy also recognized a narrow exception to this rule, though: Reprosecution is barred if the state “intended to goad the defendant into moving for a mistrial.” 14 Id. at 676. The Nevada Supreme Court deferred to the trial court’s finding that “there was no intentional conduct on the part of the prosecutor which could be classified as bad faith” and found that the Kennedy exception was not applicable in Melchor-Gloria’s case. 15 Melchor-Gloria, 660 P.2d at 112. Thus, the retrial of Melchor-Gloria was not barred by the federal Double Jeopardy Clause. 16 Id.

The Nevada Supreme Court also considered whether the double jeopardy clause of the Nevada Constitution 17 Nev. Const. art. I, § 8 (“No person shall be subject to be twice put in jeopardy for the same offense.”). barred the reprosecution of Melchor-Gloria. While Kennedy set the standard for the federal Double Jeopardy Clause, the Nevada Supreme Court was free to determine that the state’s own constitution provided more protection for defendants. 18 See, e.g., Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (recognizing “the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution” (citing Cooper v. California, 386 U.S. 58, 62 (1967))); Palmieri v. Clark County, 367 P.3d 442, 464 (Nev. 2015) (recognizing that “a state is free to ‘impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so’” (citing Cooper, 386 U.S. at 62)). Instead, the Nevada Supreme Court adopted the federal Kennedy test as the proper standard under the Nevada Constitution’s double jeopardy clause. The Nevada Supreme Court did not explain its reasons for doing so, noting only that “[t]hese double jeopardy principles have been made obligatory upon the states.” 19 Melchor-Gloria, 660 P.2d at 112 (citing Benton v. Maryland, 395 U.S. 784, 793–96 (1969)). The court held that “prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” 20 Id. Finding no prosecutorial intent to force the defendant to move for a mistrial, the Nevada Supreme Court affirmed Melchor-Gloria’s conviction. 21 Id. at 116–17.

Until 2017, Nevada courts continued to read the Nevada Constitution’s double jeopardy clause in line with Kennedy. 22 See, e.g., O’Dell v. Eighth Jud. Dist. Ct. of State ex rel Cnty. of Clark, No. 63534, 2013 WL 3967118, at *1 (Nev. July 29, 2013) (applying the Kennedy standard); Rudin v. State, 86 P.3d 572, 586 n.30 (Nev. 2004) (same); Benson v. State, 895 P.2d 1323, 1326 (Nev. 1995) (same); Gaitor v. State, 801 P.2d 1372, 1374–75 (Nev. 1990), overruled in part by Barone v. State, 866 P.2d 291 (1983) (same). In Thomas v. Eighth Judicial District Court of Nevada, however, the Nevada Supreme Court once again considered whether the state’s double jeopardy protections extend to defendants in cases in which prosecutorial misconduct or prejudicial error causes the first trial to result in a mistrial. 23 402 P.3d 619, 624–28 (Nev. 2017). The defendant in Thomas was the former CEO of the University Medical Center in Nevada and was charged with five counts of theft and official misconduct for entering into business contracts with companies owned by personal friends. 24 Id. at 622. At trial, an attorney for one of the companies told Thomas’s attorney outside of court that there was a binder of documents that might exculpate Thomas. 25 Id. The documents had been provided to the detectives investigating Thomas but had never been shown to his attorney. 26 Id. Thomas moved for a mistrial because of the prosecution’s failure to disclose this evidence, and the district court granted the motion. 27 Id. Thomas then moved to dismiss the charges under the federal and state double jeopardy clauses. 28 See id. at 623. The district court, finding that the prosecution had not withheld the documents from Thomas with the intent to provoke a mistrial, denied the motion. 29 See id.

Taking up the case, the Nevada Supreme Court determined that the Nevada Constitution’s double jeopardy clause did bar the reprosecution of Thomas 30 Id. at 624–30. —a significant change from its interpretation in Melchor-Gloria. Citing the difficulties of applying the Kennedy standard and the deficient double jeopardy protections that it affords, the Nevada Supreme Court held that “the protections of Article 1, Section 8 of the Nevada Constitution . . . attach to those instances when a prosecutor intentionally proceeds in a course of egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.” 31 Id. at 626. With the Thomas decision, Nevada became the seventh state to adopt an interpretation of its state double jeopardy clause that protects defendants in cases of prosecutorial error or misconduct more broadly than Kennedy. 32 See infra notes 112–119 and accompanying text.

This Note argues that these broader state standards protect the double jeopardy rights of defendants more adequately than the Kennedy standard while also advancing the interests of the public in law enforcement. This Note also argues that the Supreme Court’s concerns that broader standards cannot be implemented by lower courts are unfounded. Part I provides an overview of the interests protected by the Double Jeopardy Clause and how double jeopardy applies in the mistrial context; it then describes the Kennedy standard and broader state standards. Part II details the opposing rationales for adopting the Kennedy standard and adopting broader standards. Part II also presents the findings of a state-by-state review of the standard applied in each state, which demonstrate that, while the majority of states have adopted the Kennedy standard, very few did so after considering whether it was the appropriate standard under their state constitutions. Part III analyzes the justifications for adopting Kennedy and broader standards to determine which standard better upholds double jeopardy interests and also considers the practical implications of adopting either standard. Ultimately, this Note calls on states that have adopted the Kennedy standard to adopt broader standards under their state constitutions.