was innocent; defendant had asked for the dismissal; and
there was no prosecutorial bad faith.
State v. Andrial, 203 N.J. Super. 1 (App. Div. 1985).
Defendant was charged with a series of crimes. At trial,
an allegedly inadvertent, but potentially prejudicial
response was given by a witness during his testimony.
Defendant moved for a mistrial, and it was granted.
Before a new jury was impaneled, defendant moved for
dismissal of the indictment on double jeopardy grounds,
arguing that he was forced to move for a mistrial due to
“prosecutorial overreaching.” The trial court determined
that the witness’s remarks were “unintentional” and
denied the motion. Defendant appealed, and the
Appellate Division held that “[w]hen a defendant
successfully moves for a mistrial, he may invoke the bar of
double jeopardy in a second effort to try him only when
the prosecutorial conduct giving rise to the successful
motion for a mistrial was intended to provoke the
defendant into making the motion.” 203 N.J. Super. at
8 (citing Oregon v. Kennedy, 456 U.S. 667, 679, 102
S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982)). See also
Scott v. United States, 437 U.S. 82, 98 S.Ct. 2187, 57
L.Ed.2d 65 (1978) (permitting a Government appeal
from a midtrial dismissal not related to finding of guilt or
innocence, and considering defendant’s motion for
dismissal to be akin to a motion for mistrial that does not
bar retrial).
State v. DeMarco, 211 N.J. Super. 421 (App. Div.
1986). At retrial, a jury found defendant guilty of
possessing gambling records. At the first trial, defendant
had successfully moved for a mistrial based on
prosecutorial misconduct in the opening statement.
Before retrial, the trial court denied defendant’s double-
jeopardy-based motion for dismissal. Defendant had
contended that the prosecutor in his opening statement
intentionally referred to hearsay. The trial court found
no intentional misconduct by the prosecutor. On
appeal, the Appellate Division, citing Dinitz, agreed with
the trial court that the prosecutor had not intentionally
goaded defendant into moving for a mistrial; that there
was no evidence the prosecutor had an incentive to abort
the trial; and that retrial was permitted.
In State v. Chenique-Puey, 145 N.J. 334 (1996), the
Court held that double jeopardy concerns do not arise
and retrial is not barred when defendant requests to sever
trial of a domestic violence contempt charge and trial of
the underlying terroristic threats charge. Neither double
jeopardy nor collateral estoppel, the Court stated, would
bar the second trial.
In State v. Cooper, 307 N.J. Super. 196 (App. Div.
1997), the Appellate Division held that assuming the
prosecutor acted improperly or inexcusably in violating a
sequestration order, the Double Jeopardy Clause did not
bar a retrial because the prosecutor did not intend to
provoke defendant into requesting a mistrial. The Court
noted that mistrials declared with the defendant’s
consent generally do not bar later prosecution. In Cooper,
defendant “could have sought to cross-examine the
State’s witnesses and sum up by reference to the impact
of their communications during trial in violation of the
sequestration order.” As a result of defendant’s decision
to move for a mistrial, the Court reasoned, double
jeopardy did not prevent retrial.In State v. Wright, 312 N.J. Super. 442 (App. Div.
1998), the Appellate Division affirmed defendant’s drug
and conspiracy convictions. An undercover police officer
had worked with a confidential informant to set up a drug
buy with defendant and defendant’s brother, and did so.
The officer’s police report concerning the buy never
mentioned the informant, nor did any other investigative
reports, and defendant’s brother during a pretrial hearing
first discussed the informant’s existence. After
conviction, the trial judge granted a new trial because the
confidential informant had played a substantial role in
the investigation; the prosecutor, though, had never
known of his existence, which the police had withheld.
The judge denied defendant’s motion to bar a retrial
because double jeopardy did not apply. On appeal after
conviction, the Appellate Division agreed that double
jeopardy principles did not prevent a retrial since those
principles do not prevent a second trial for defendants
who successfully have their guilty verdicts set aside and
since no prosecutorial misconduct existed. Fundamental
fairness dictated no different result, either, particularly
since defendant had presented the confidential
informant’s testimony at the retrial. While a similar
Cumberland County case demanded reversal last year,
State v. Cooper, 301 N.J. Super. 298 (App. Div. 1997),
the withholding of the informant’s existence in this case
took place before the court decided Cooper. The
Appellate Division, however, strongly disapproved of this
police practice, which “must cease immediately,” and
directed the county prosecutor to notify all county police
departments that police reports must disclose a
confidential informant’s existence. Failure to do so could
bar reprosecutions in the future.In a brief concurring opinion, Judge Kestin
emphasized that little difference exists between police
misfeasance that deprives defendant of a fair trial and
prosecutorial misconduct that has the same result.