During cross examination of the defendant in a drug trafficking case, the prosecutor read back supposed language of defendant, made during a earlier change of plea proceeding (the plea was later withdrawn). What he read back appeared to contradict the defendant's trial testimony; based on this, the prosecutor accused defendant of lying. However, the prosecutor had presented an altered version of the earlier exchange; the true statement reflected defendant had not contradicted herself.
When the defense attorney discovered the prosecutor's misrepresentation, he moved for a mistrial, which was granted. The defense then moved to dismiss the indictment with prejudice on double jeopardy grounds, but this was denied by the district court. Affirmed. Under Oregon v. Kennedy (1982) 456 U.S. 667, double jeopardy bars retrial after a defense-requested mistrial is granted "only where the government conduct in question is intended to 'goad' the defendant into moving for a mistrial." In this case, the prosecutor’s misrepresentation was intended to secure a conviction. "In other words . . . the Double Jeopardy Clause bars retrial when a prosecutor's misconduct aims to 'burn' the jury, but not when he merely aims to convict the defendant by methods foul." In this case, double jeopardy does not bar retrial under the Oregon v. Kennedy "goading" exception.© 2011 Darren Chaker. All Rights Reserved.