Fields v. State

⁷²⁵ MOYLAN, Judge. What we observed a decade ago in West v. State, 52 Md.App. 624, 625 , 451 A.2d 1228 (1982), is equally pertinent as we take up the present appeal: “We are here called upon to explore a secluded but exotic corner of the double jeopardy garden — prosecutorial and judicial overreaching. In life, it is seldom seen except as an imagined possibility in the most painstakingly thorough of footnotes. As a contention, however, it is in luxuriant vogue and is being resorted to promiscuously.” The appellant, James Fields, went to trial along with a codefendant before a Baltimore County jury on April 23, 1992 for armed robbery and related offenses.

On the second day of trial, a mistrial was declared. When the State subsequently indicated that it was preparing for a retrial, the appellant moved to bar retrial on the ground that it would violate his Fifth Amendment right against double jeopardy. On September 8, a hearing on the double jeopardy bar was conducted by Judge J. William Hinkel. Judge Hinkel denied the motion and this appeal has followed.

What Kind of Double Jeopardy Are We Talking About? When dealing with a generic category or portmanteau phenomenon such as double jeopardy, it is indispensable at the outset to identity the particular species of double jeopardy being invoked. There are no less than four such species within the genus “double jeopardy.” Each carries with it a different history; each serves a different purpose; each has different implementing rules. The broad umbrella term we call “double jeopardy” today embraces (in its federal manifestation) four distinct species: 1) classic former jeopardy, arising out of the common law pleas at bar of autrefois convict and autrefois acquit; 2) simultaneous jeopardy, involving largely issues of merger and multiple punishment and lying on the at-times blurred boundary between constitutional law and statutory construction; 3) the problem of retrial following mistrial; and 4) collateral estoppel. ⁷²⁶ The species of double jeopardy law that we must examine in this case is that of “retrial following mistrial.” This species was brought into the double jeopardy fold late in the day in an essentially haphazard way.

In a scholarly dissenting opinion in Crist v. Bretz, 437 U.S. 28, 40-53 , 98 S.Ct. 2156 , 57 L.Ed.2d 24, 34-42 (1978), Justice Powell traced perceptively the history of what had once been “a separate rule of English practice,” 437 U.S. at 41 , 98 S.Ct. at 2164 , through its “rather unreflective incorporation ... into the guarantee against double jeopardy.” 437 U.S. at 46 , 98 S.Ct. at 2166 . Justice Powell attributed this aspect of English practice to Lord Coke and demonstrated that “this rule arose as an aspect of jury practice, rather than as an element of the guarantee against double jeopardy.” 437 U.S. at 41 , 98 S.Ct. at 2164 . He cited the leading English cases and reported that they had “refused to import the rule into the realm of pleas in bar, and it was the latter which informed the framing of the Double Jeopardy Clause.” 437 U.S. at 43 , 98 S.Ct. at 2165 . Justice Powell also pointed out how the seminal decision of United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824), wherein the Supreme Court first employed Lord Coke’s rule of English practice, did not remotely suggest that the procedural protection was based upon any double jeopardy consideration.

He characterized “Perez as [an] independent rule barring needless discharges.” Crist, 437 U.S. at 44 , 98 S.Ct. at 2165 . In searching for the source of the uncritical doctrinal leap, Justice Powell showed how some American state courts during the 19th century placed Lord Coke’s rule “under the rubric of the Double Jeopardy Clause” but that they did so “with no apparent awareness of the novelty of their action.” Crist, 437 U.S. at 46 , 98 S.Ct. at 2166 . After tracing this “unreflective incorporation of a common-law rule of jury practice into the guarantee against double jeopardy” in the state courts, id., Justice Powell pinpointed 1949 as the moment the Supreme Court fell into the same unthinking error: “It was after more than a century of development in state courts that the ‘defendant’s valued right to have his trial ⁷²⁷ completed by a particular tribunal’ appeared in the decisions of this Court for the first time, also without analysis, as an element of the Double Jeopardy Clause. Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834, 837 , 93 L.Ed. 974 (1949).

Crist, 437 U.S. at 47 , 98 S.Ct. at 2166-67 . Justice Powell observed that the Supreme Court did this “almost without articulated thought.” Id. For better or for worse, it is done. “The moving finger writes and, having writ, moves on.” However shadowy its constitutional pedigree may be, Lord Coke’s rule dealing with retrials following mistrials is now inextricably ensconced in the federal family of protections known generically as “double jeopardy.” It will nonetheless be prudent not to intone too readily generalized pronouncements about double jeopardy law but to remember carefully that many of the incidents of this discrete branch of it are unique to this species alone. One characteristic of this erstwhile English rule of practice that is unique to it is its nondependence upon the rendering of a verdict.

What this once meant was that the rule of practice was indifferent to the attachment of jeopardy. The English rule barring certain retrials following certain declarations of mistrial was not contingent upon any finding of earlier jeopardy. Indeed, the event that might foreclose a retrial occurred, of necessity, before there had been any jeopardy. At the common law, there was no jeopardy until a verdict was rendered.

Mistrials, on the other hand, are declared before verdicts are rendered. Because the English rule of practice was not deemed to be a part of double jeopardy law, it was indifferent to whether there had or had not been any attachment of jeopardy. In classic double jeopardy law, by contrast, the triggering event of jeopardy occurred only as a verdict was rendered. Only then had the historic event taken place which could support a plea of autrefois acquit or autrefois convict.

The plea in bar to a second or subsequent jeopardy was, by definition, contingent upon the happening of the earlier jeopardy, to wit, the rendering of the earlier verdict. ⁷²⁸ In what is now the second species of double jeopardy law, that prohibiting multiple punishment for the same offense in the context of simultaneous jeopardies, the danger of multiple punishment does not arise, even potentially, until the rendering of the verdicts and does not arise, actually, until the imposition of sentence. There is no possibility of merging convictions for lesser included offenses into convictions for greater included offenses until verdicts of conviction have been rendered. In the case of the fourth species of double jeopardy law, collateral estoppel, the very issue of estoppel cannot arise until there has been a verdict on the ultimate merits necessarily litigating a particular issue of fact. That necessary finding of fact manifested by a verdict is the estopping instrumentality.

Until that moment, there is no predicate for collateral estoppel. In English common law, it was always the case that initial jeopardy was not deemed to attach until a verdict was rendered. That is still the position of the common law, both in England and in Maryland, today. Queen v. Charlesworth, 1 B. & S. 460, 500, 121 ER 786, 801 (QB 1861); Winsor v. Queen, LR 1 QB 289, 390 (1866); Hoffman v. State, 20 Md. 425, 433-434 (1863); State v. Shields, 49 Md. 301, 303-304 (1878); Gilpin v. State, 142 Md. 464 , 121 A. 354 (1923).

Traditionally, the rendering of a verdict and the attachment of jeopardy were simultaneous and indivisible effects of a single cause. All other varieties of what has now become the all-embracing genus of double jeopardy law are, as they always have been, verdict-dependent and jeopardy-dependent. Lord Coke’s rule regulating retrials after mistrials, on the other hand, was in its pristine form, and even until quite recently, blithely independent of and indifferent to the very notion of the attachment of jeopardy. It is for this reason that mistrial/retrial law, albeit now a part of the federal constitutional law of double jeopardy under the Fifth Amendment, has never been included within the coverage of the Maryland common law of double jeopardy.

As ⁷²⁹ Judge Eldridge explained for the Court of Appeals in Cornish v. State, 272 Md. 312 , 316 n. 2, 322 A.2d 880 (1974): “The view in this state was that, under the common law’s double jeopardy prohibition, jeopardy did not attach until the rendition of a verdict and that, therefore, a retrial following the declaration of a mistrial did not give rise to a double jeopardy problem.” See also Kyle v. State, 6 Md.App. 159 , 250 A.2d 314 (1969); Boone v. State, 3 Md.App. 11, 23-25 , 237 A.2d 787 (1968). And see West v. State, 52 Md.App. 624, 627 , 451 A.2d 1228 (1982). When, however, Wade v. Hunter, 336 U.S. 684 , 69 S.Ct. 834 , 93 L.Ed. 974 , in 1949 suddenly deemed the mistrial/retrial rule to be a part of Fifth Amendment double jeopardy law, a tectonic shift became necessary in the undergirding analysis. In order to accommodate the mistrial/retrial rule into the body of preexisting double jeopardy law, it became logically compelling to disengage the attachment of jeopardy from the rendering of a verdict and to move it back in time to the beginning of the trial.

In the service of that accommodation, it is now the federal law that in a jury trial the magic moment when jeopardy begins is the very instant that the jury is sworn. Crist v. Bretz, 437 U.S. at 37-38 , 98 S.Ct. at 2161-62 . To make something seem to be jeopardy-dependent that had never historically been jeopardy-dependent, it was necessary to relocate the attachment of jeopardy. What occurred was an almost Orwellian revisionism.

Under the new dispensation, everyone conveniently forgot two hundred years of history. As Justice Powell observed in his now classic Crist v. Bretz dissent: “The rule that jeopardy attaches in a jury trial at the moment the jury is sworn is not mandated by the Constitution. It is the product of historical accident, embodied in a Court decision without the slightest consideration of the policies it purports to serve.” 437 U.S. at 40 , 98 S.Ct. at 2163 . In the present case, of course, the jury had been sworn and the trial had begun.

It had, indeed, progressed for two days ⁷³⁰ when the mistrial was declared. Initial jeopardy, therefore, had attached. The appeal is on track. Why Bother?

The essential dissimilarity between the mistrial/retrial species of double jeopardy law and all other species of double jeopardy law is once again illustrated when it comes to consideration of the purpose intended to be served by the particular protection under review. North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076-77 , 23 L.Ed.2d 656, 664-665 (1969), has become the standard statement of the multiple purposes served by the Double Jeopardy Clause: “That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction.

And it protects against multiple punishments for the same offense.” (footnotes omitted). That, of course, is a beautiful statement of the purposes served by the former jeopardy species of double jeopardy law, with respect to both its former acquittal subdivision and its former conviction subdivision. The third of North Carolina v. Pearce’s stated purposes also well expresses the end served, both in a sequential jeopardy setting and a simultaneous jeopardy setting, when we carefully parse the elements of two or more nonidentical offenses, after conviction and before sentencing, to make certain that we do not subject a convicted defendant to multiple punishments for the “same offense.” That statement of purposes from North Carolina v. Pearce, and its regular reincantation in the years since, however, does not have anything remotely to do with the very different purpose served by the mistrial/retrial species of double jeopardy law. For that matter, it has nothing to do with the yet different purpose served by the collateral estoppel species of double jeopardy law, but in that instance, of course, there is the ready explanation that collateral estoppel was never even considered to be part of double jeopardy law until Ashe v. ⁷³¹ Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), suddenly declared it to be so a full year after the North Carolina v. Pearce opinion had been promulgated.

The purpose of the mistrial/retrial species of double jeopardy law is certainly not to preserve the finality of an acquittal or a conviction because there is no acquittal or conviction to be afforded finality. Nor is it the purpose of this species of the law to avoid multiple punishment for it applies with full vigor to the trial of a single count of a single indictment. The full flowering of the purpose of this rule of English practice was a reaction to the excesses of prosecution-minded Royalist judges, such as the legendary “Bloody Jeffreys,” during the period of the “Bloody Assizes,” as the Crown relentlessly pursued the rebels involved in the ill-fated Duke of Monmouth’s Rebellion. The particular excess to be guarded against was the tendency of the Crown, acting either through the prosecutor or the judge or both, to sabotage a trial that was going badly for the Crown so the prosecution could regroup and live to fight another day.

In Arizona v. Washington, 434 U.S. 497, 507-508 , 98 S.Ct. 824, 831 , 54 L.Ed.2d 717, 729 (1978), Justice Stevens referred to this historic abuse: “Although there was a time when English judges served the Stuart Monarchs by exercising a power to discharge a jury whenever it appeared that the Crown’s evidence would be insufficient to convict, the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this ‘abhorrent’ practice.” (footnotes omitted). See also Queen v. Charlesworth, 121 E.R. 786, 802 (Q.B. 1861); Friedland, Double Jeopardy 13-14, 21-25 (1969); Sigler, Double Jeopardy 87 (1969). The rule governing retrials after mistrials was the Common Law’s response to what Holmes would have called “the felt necessity of the time.” The Supreme Court of North Carolina discussed the historic problem and the response in State v. Garrigues, 2 N.C. 188 , 189 (1795): ⁷³² “[I]n the reigns of the latter sovereigns of the Stuart family, a different rule prevailed, that a jury in such case might be discharged for the purpose of having better evidence against him at a future day; and this power was exercised for the benefit of the crown only; but it is a doctrine so abhorrent to every principle of safety and security that it ought not to receive the least countenance in the courts of this country. In the time of James II, and since the Revolution, this doctrine came under examination, and the rule as laid down by my Lord Coke was revived.... ” Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834, 837 , 93 L.Ed. 974 (1949), characterized this guarantee as “a defendant’s valued right to have his trial completed by a particular tribunal.” See also Downum v. United States, 372 U.S. 734, 736 , 83 S.Ct. 1033, 1034 , 10 L.Ed.2d 100, 102 (1963); Oregon v. Kennedy, 456 U.S. 667, 671-672 , 102 S.Ct. 2083, 2087 , 72 L.Ed.2d 416, 422 (1982).

Illinois v. Somerville, 410 U.S. 458, 463 , 93 S.Ct. 1066, 1070 , 35 L.Ed.2d 425, 430 (1973), spoke of the “interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction.” United States v. Jorn, 400 U.S. 470, 484-485 , 91 S.Ct. 547, 557 , 27 L.Ed.2d 543, 556 (1971), examined more fully this particular right to keep a tribunal, once empaneled, together to the sweet or bitter end: “[T]he crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting ■without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his ‘valued right to have his trial completed by a particular tribunal.’ If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to war ⁷³³ rant a declaration of mistrial.” (footnote and citation omitted). An understanding of that historic purpose of this English rule of practice that has since been elevated to a species of double jeopardy law is indispensable to an understanding of the notion of “prosecutorial or judicial overreaching” yet to be considered. The interest of the appellant in this case that was arguably compromised was his entitlement to keep his jury, once it had been empaneled, together until it reached a verdict.

This was the particular constitutional right that was arguably violated by the declaration of a mistrial. Who Asked for the Mistrial? Any inquiry into the propriety of a declaration of mistrial begins with the question, “Who asked for it?” The entire framework of subsequent analysis depends on the answer to that question. Once again, this inquiry is unique to the mistrial/retrial species of double jeopardy law.

In every other branch of double jeopardy law, it is the happening of an event — the rendering of a verdict — that automatically terminates (or suspends) the initial jeopardy. It is in the mistrial/retrial enclave alone that we are concerned with which of three key trial participants sought and ultimately obtained the mistrial. There are three key players involved in every trial: the judge, the prosecutor, and the defendant (directly or through his agent, the defense attorney). In terms of the Machiavellian employment of the mistrial device deliberately to sabotage a trial perceived to be going badly for the prosecution, the historic culprits were the judge and the prosecuting attorney.

When, therefore, a mistrial is declared, over the objection of the defense, either at the request of the prosecutor or sua sponte by the judge, the rule provides that no retrial will be permitted unless there was a “manifest necessity” for the mistrial. When that is the posture of the mistrial analysis, a substantial body of law is available exploring every nuance of what is and what is not “manifest necessity.” ⁷³⁴ United States v. Perez, 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824); Wade v. Hunter, 336 U.S. 684 , 69 S.Ct. 834 , 93 L.Ed. 974 (1949); Gori v. United States, 367 U.S. 364 , 81 S.Ct. 1523 , 6 L.Ed.2d 901 (1961); Downum v. United States, 372 U.S. 734 , 83 S.Ct. 1033 , 10 L.Ed.2d 100 (1963); United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , 27 L.Ed.2d 543 (1971); Illinois v. Somerville, 410 U.S. 458 , 93 S.Ct. 1066 , 35 L.Ed.2d 425 (1973); United States v. Dinitz, 424 U.S. 600 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976); Arizona v. Washington, 434 U.S. 497 , 98 S.Ct. 824 , 54 L.Ed.2d 717 (1978). In stressing yet again the unique status of this species of double jeopardy law, the inquiry into the presence of manifest necessity appears only in this context. It has no meaning in any other branch of double jeopardy law.

The present case, however, is not in that posture. Manifest necessity is, therefore, an immaterial consideration. The mistrial was certainly not requested by the assistant state’s attorney. Although it appeared initially that it was going to be declared by the judge sua sponte, it ultimately turned out to be something that was requested by the appellant.

Indeed, all three of the key players in the trial agreed that the mistrial should be declared. As we will explore more fully when we turn to the issue of judicial or prosecutorial overreaching (a possible exemption for a defendant from the otherwise foreclosing effect of having agreed to a mistrial), a regrettable disagreement between the judge and the prosecutor steadily escalated into an angry argument and ultimately degenerated into a veritable shouting match of mutual insults and displays of uncontrolled temper. The culminating exchange was: “The Court: I am declaring a mistrial. [The prosecutor]: No one is asking for a mistrial. You must make a finding of manifest [necessity].

The Court: I will do what I want to do! That is what you do not understand. Take a break.” The judge, the assistant state’s attorney, and counsel for both codefendants went immediately into chambers. No rec ⁷³⁵ ord was made of what there occurred.

It appears likely that the judge and the prosecutor were chagrined and embarrassed at their outbursts and that both defense counsel were in a state of mild shock. When, a few minutes thereafter, everyone emerged from chambers and went back on the record, the mood was calm and decorous: “The Court: Counsel, do you have a motion? Mr. Kowitz: On behalf of Mr. Fields, we are making a motion for a mistrial at this time based on the incident that occurred prior to the break that was heard within earshot of the jury. I believe that it would be unfair to continue this trial at this time considering the nature of the discussion between the Court and the prosecuting attorney.

I believe that the case under those circumstances should not continue. For that reason, I would make a motion for a mistrial. Mr. Sutíey: I would like to make a motion for the same reasons on behalf of Mr. Newsome. The Court: State? [The prosecutor]: The State believes there is sufficient basis for a mistrial, Your Honor.

The Court: Okay. Mistrial is granted. The case will be set back in I guess in the normal course of assignment.” Because the mistrial was actually requested, let alone acquiesced in, by the appellant, the presence or absence of manifest necessity had no significance. Nonetheless, the court did indulge the prosecution in the following brief immateriality: “[The prosecutor]: Your Honor, just so the record is clear, I believe there has been a holding that the Court must make a specific finding that there is manifest [necessity] on the record to justify a mistrial.

The Court: That is correct. For the record, based on the discussion at the bench that was heard between or overheard by the jury concerning the admissibility of statements of Fields and Newsome, and the subsequent incident that followed it, I feel there is a manifest [necessity], and a mistrial will be granted. ⁷³⁶ [The prosecutor]: Thank you, Your Honor. Mr. Kowitz: Thank you.” The Foreclosing Effect of Waiver and the Limited Exemption Therefrom When, as here, a mistrial is requested, or even acquiesced in, by a defendant, the mistrial/retrial analysis is in a completely different posture. Manifest necessity is an irrelevancy.

It, after all, is an amnesty from the double jeopardy sanction appealed to by prosecutors and judges when they have requested or declared the mistrial. In the very different procedural context where the defense requests or agrees to a mistrial, manifest necessity is not even a consideration. The Supreme Court recognized the diametric distinction between these two procedural situations in Oregon v. Kennedy, 456 U.S. 667, 672 , 102 S.Ct. 2083, 2087 , 72 L.Ed.2d 416, 417 (1982): “But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here 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.” (emphasis supplied).

United States v. Dinitz, 424 U.S. 600, 607 , 96 S.Ct. 1075, 1079 , 47 L.Ed.2d 267, 273 (1976), observed: “Different considerations obtain, however, when the mistrial has been declared at the defendant’s request.” (footnote omitted). Dinitz went on to note, at 424 U.S. at 608 , 96 S.Ct. at 1080 : “The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant’s request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause.” We ourselves commented on these two very different analytic perspectives in West v. State, 52 Md.App. 624, 630-631 , 451 A.2d 1228 (1982): “[T]hose situations appear in two essential postures. The first is where the mistrial has been declared by the judge sua sponte or at the request of the State, either over the ⁷³⁷ objection of the defendant or at least without the explicit acquiescence of the defendant. In those situations, the rule is that if there was a manifest necessity for the mistrial, retrial will not be barred; but if the trial was needlessly aborted, retrial will be barred.

The other essential posture, and the one that is before us, is where the mistrial is declared at the request of the defendant. Ordinarily, a defense request for a mistrial is treated as a waiver of any double jeopardy claim.” (citations omitted). Where the mistrial has actually been requested or agreed to by the defense, the pivotal issue becomes one of waiver. As was noted by Lee v. United States, 432 U.S. 23, 32-33 , 97 S.Ct. 2141, 2146-47 , 53 L.Ed.2d 80, 89 (1977): “Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy Clause generally would not stand in the way of reprosecution.” As a limited exemption from the otherwise foreclosing effect of waiver, there appeared in 1964 a tender shoot of dicta.

In United States v. Toteo, 377 U.S. 463 , 84 S.Ct. 1587 , 12 L.Ed.2d 448 (1964), it was held that the judicial impropriety that led to a reversal in that case would not bar a retrial. The appellate reversal was analogized to a declaration of mistrial and, in a footnote, a single sentence of dictum added a modification to the analogy: “If there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain.” 377 U.S. at 468 n. 3, 84 S.Ct. at 1590 n. 3. Let it be noted that even in that original dictum, the distinction that is drawn is one between 1) an ordinary “prosecutorial or judicial impropriety justifying a mistrial,” and 2) an otherwise indistinguishable prosecutorial or judicial impropriety save for the additional and aggravating mens rea that the impropriety proceed “from a fear that the jury was likely to acquit the accused.” ⁷³⁸ It is not the heinousness of the error or even the impact of the error on the trial fortunes of the defendant that separates the former from the latter; the single criterion is the motive behind the error. That limitation on the otherwise foreclosing effect of waiver, still by way of dicta, was repeated in United States v. Jorn, 400 U.S. 470, 485 , 91 S.Ct. 547, 557 , 27 L.Ed.2d 543, 556 (1971): “Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” (footnote omitted) (emphasis supplied).

That was, incidentally, the first use of the now talismanic phrase “prosecutorial or judicial overreaching.” United States v. Dinitz, 424 U.S. 600 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976), was the first occasion where the Supreme Court decision actually turned on a defendant’s eligibility for this immunization from the procedural ravages of waiver. The Dinitz case presents an interesting contrast with the one at bar. There, as here, one of the attorneys was the object of the trial judge’s manifest anger. In that case, however, far more erosive to the effectiveness of the defense case, it was the defense attorney himself who was the focus of judicial disfavor.

No less than four times during the course of the defendant’s opening statement, defense counsel was sharply upbraided by the trial judge, twice at great length. Ultimately, the trial judge actually dismissed Dinitz’s lead counsel from the case, “excluded [him] from the trial and ordered him to leave the courthouse.” Dinitz, 424 U.S. at 603 , 96 S.Ct. at 1078 . When it became obvious that assistant counsel was not adequately prepared to.go forward with the defense of the case, Dinitz was permitted to request and was granted a mistrial. The Supreme Court accepted, arguendo, the conclusion of the U.S. Court of Appeals for the Fifth Circuit that ⁷³⁹ “the trial judge overreacted in expelling [defense, counsel] from the courtroom.” 424 U.S. at 611 , 96 S.Ct. at 1081 .

The Supreme Court was not insensitive to the extremely difficult tactical dilemma in which a defendant may find himself as a result of judicial or prosecutorial error, a circumstance: “... where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error.... In such circumstances, the defendant generally does face a ‘Hobson’s choice’ between giving up his first jury and continuing a trial tainted by prejudicial judicial or prosecutorial error.” (citations omitted). Dinitz, 424 U.S. at 609 , 96 S.Ct. at 1080 . Notwithstanding the mutually perilous alternatives of a “Hobson’s choice,” the double jeopardy bar is still not invoked as long as the beleaguered defendant retains “primary control” of his tactical maneuvering to combat or to counteract the perils: “The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” (footnote omitted).

Id. For double jeopardy purposes, there is only deemed to be an interference with a defendant’s right to keep his tribunal together when the prosecutor or judge not simply commits error but does so for the deliberate purpose of sabotaging a trial by provoking or goading the defendant into requesting a mistrial: “The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ threatens the ‘[hjarassment 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.” (citation omitted) (emphasis supplied). ⁷⁴⁰ Id. at 611 , 96 S.Ct. at 1081 . The critical inquiry is not into what the judge or prosecutor did but into why they did it.

In the Dinitz case itself, notwithstanding the untenable position in which the defendant found himself by virtue of the judge’s error, the Supreme Court held that there was no bar to a retrial. The Supreme Court reasoned that the judge, albeit in error, was not motivated by bad faith: “[T]he trial judge’s banishment of [defense counsel] from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial.... Even accepting the appellate court’s conclusion that the trial judge overreacted in expelling [defense counsel] from the courtroom, ... the court did not suggest, the respondent has not contended, and the record does not show that the judge’s action was motivated by bad faith or undertaken to harass or prejudice the respondent.” (citation and footnote omitted) (emphasis supplied). Id. at 611 , 96 S.Ct. at 1081 .

A dictum in Lee v. United States, 432 U.S. 23, 33 , 97 S.Ct. 2141, 2147 , 53 L.Ed.2d 80, 89 (1977), picked up the refrain from Dinitz : “Only if the underlying error was ‘motivated by bad faith or undertaken to harass or prejudice,’ would there be any barrier to retrial.” A repetitive echo, again in dicta, was heard in United States v. DiFrancesco, 449 U.S. 117, 130 , 101 S.Ct. 426, 434 , 66 L.Ed.2d 328 (1980), “[Rjeprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request.” Whereas in United States v. Dinitz the defendant was placed in an untenable position by judicial error, in Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), the defendant was placed in an equally untenable position by prosecutorial error. In neither case, however, did the prejudicial error constitute “overreaching” because the motivation for the error was not to goad the defendant into requesting a mistrial. In Oregon v. Kennedy, the explanation for the prosecutor’s error was his frustration with adverse rulings by ⁷⁴¹ the trial judge. The defendant, Kennedy, was an oriental rug dealer.

The defense had sought to show the bias of an expert witness by bringing out that the witness had filed a criminal complaint against Kennedy. The prosecution, on redirect, was seeking to elicit the reasons why the witness had filed the complaint. The trial judge sustained a series of objections to this line of inquiry. The Oregon Court of Appeals later observed that “the judge’s rulings were probably wrong.” State v. Kennedy, 49 Or.App. 415 , 619 F.2d 948, 949 (1980).

Right or wrong, they frustrated the prosecutor enough to produce the following brief exchange: “Prosecutor: Have you ever done business with the Kennedys? Witness: No, I have not. Prosecutor: Is that because he is a crook?” The trial judge immediately granted Kennedy’s motion for a mistrial. Kennedy later claimed that a retrial should be barred because of prosecutorial “overreaching.” On appeal, the Oregon Court of Appeals agreed with Kennedy that prosecutorial “overreaching” barred a retrial.

The Supreme Court of the United States reversed. The Supreme Court began its analysis by noting 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.” Kennedy, 456 U.S. at 678 , 102 S.Ct. at 2088 . Acknowledging that its earlier cases had left some doubt as to the contours of the exception, the Supreme Court felt that it was behooved “to delineate the bounds of that exception more fully than we have in previous cases.” Id. The Court acknowledged that its discussions had not always meticulously cabined the concept of overreaching: “The