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Double jeopardy no bar to retrial after mistrial caused by State’s delay in disclosing 2nd photo array

State v. Mickey L. Miller, 2017AP2323-CR, 1/29/19, District 1 (not recommended for publication); case activity (including briefs)

Midway through Miller’s trial, the State discovered that two photo arrays had been conducted when both parties thought there had been just one. The State did not immediately disclose this fact. It waited until after the victim testified. The defense obtained a mistrial. The court of appeals holds that double jeopardy did not bar the State from trying Miller again.

The court of appeals decision turns on State v. Jaimes, 2006 WI App 93, ¶8, 292 Wis. 2d 656, 715 N.W.2d 669, which holds that while the double jeopardy clause does not bar a retrial when the defendant requests a mistrial, there is an exception for prosecutorial overreach. Either the prosecutor had to intentionally engage in misconduct that would prejudice the defense, or his action was designed to create a second chance to convict or to prejudice the defendant’s right to complete the first trial. (Opinion, ¶¶17-18).

The court of appeals held that the first exception did not apply because the DAs testified that they knew nothing about the 2nd photo array until they started prepping the victim to testify. Also, the 2nd photo array only strengthened their case, so withholding it didn’t prejudice the defense. (Opinion, ¶¶18-19). The second exception was not present because the State had a very strong case at the first trial. There was no reason for it to engage in conduct that would alter the course of it. (Opinion, ¶¶20-22).

This begs the question: So why did the DAs delay in disclosing the 2nd photo array? The opinion does not say. The defendant’s initial brief argues that the State engaged in 2 forms of misconduct: (1) the police didn’t tell anyone about the 2nd photo array, and (2) after learning about it from the victim herself the DAs said nothing until defense counsel forced their hand. On CX defense counsel asked the victim if police had told her that they suspected that another man had committed the crime. That’s when they State came clean.


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