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Double Jeopardy – Prosecutorial Misconduct: Retrial Barred Notwithstanding Absence of Defense Request for Mistrial

State v. Lettice (II), 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998)
(prior history: State v. John A. Lettice (I), 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996); subsequent history: BAPR v. Steven M. Lucareli, 2000 WI 55)
For Lettice: John Allan Pray, UW Law School

Issue/Holding:

We conclude that (1) Lettice is not estopped from seeking a dismissal based on double jeopardy; (2) Lettice’s failure to move for mistrial does not prevent him from asserting that prosecutorial misconduct bars retrial when the prosecutor engaged in misconduct with a covert motive which Lettice was not aware of until after trial; and (3) double jeopardy bars retrial because the prosecutor’s action was undertaken with the intent to prevent an acquittal or to prejudice the possibility of an acquittal that the prosecutor believed would occur in the absence of his misconduct. The trial court’s order of dismissal is therefore affirmed….

We specifically hold that even in the absence of a motion for mistrial, the double jeopardy clause bars retrial when the prosecutorial misconduct is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct. See Wallach II, 979 F.2d at 916. This protects a defendant from multiple successive prosecutions for the same offense that result from prosecutorial misconduct done with the deliberate intent of interfering with the defendant’s right to have his trial completed by a particular tribunal or by prejudicing the possibility of an acquittal that the prosecutor believed likely. See Pavloyianis, 996 F.2d at 1473.

Lettice’s postconviction, 1st-appeal request for retrial didn’t estop him from seeking double jeopardy to retrial after relief granted on basis of prosecutorial misconduct, “because the issue was not ripe for determination at that time.” Rather, the defendant is required to move for dismissal only after the State has decided whether to proceed with retrial, 221 Wis. 2d at 78. On the merits, this case presents the novel issue of “whether the double jeopardy clause affords protection against retrial to a defendant who has not moved for a mistrial because he or she is not fully aware at trial of the motivation for or effect of the prosecutor’s misconduct.” 221 Wis. 2d at 82. Under the unusual facts — the prosecutorial misconduct became apparent only after trial, and “was not in the form of trial errors but rather was Lucareli’s insidious plan to force Burgy’s removal as defense counsel to avoid going to trial on the date for which it was set” — Lettice may avail himself of the rule that, due to prosecutorial fear of acquittal, intentional prosecutorial misconduct aimed at provoking defense request for continuance may bar retrial. See Oregon v. Kennedy, 456 U.S. 667, 673; and State v. Hampton, 207 Wis.2d 367, 384, 558 N.W.2d 884 (Ct. App. 1996) (1982).

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