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Double Jeopardy – Retrial after Mistrial

State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12

court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity

Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed to advise of same, an omission the trial court attributed to “laxness on the part of the State.” The trial court then ruled that, while there had been no “prosecutorial overreaching,” retrial was barred and ordered dismissal of the charges with prejudice. The court of appeals now reverses.

¶10      It is well established that “retrial is barred when a defendant moves for and obtains a mistrial due to prosecutorial overreaching.”  Hill, 240 Wis. 2d 1, ¶11 …

¶12      Thorstad cites State v. Barthels in support of her assertion that prosecutorial laxness that induces a defendant’s request for a mistrial bars retrial.  State v. Barthels, 174 Wis. 2d 173, 495 N.W.2d 341 (1993), abrogated in part by State v. Seefeldt, 2003 WI 47, ¶33, 261 Wis. 2d 383, 661 N.W.2d 822.  However, we disagree with Thorstad’s reading of Barthels.

¶16      We also note that Thorstad has brought to our attention no case from the United States Supreme Court that has extended the exception to prosecutorial laxness. …

¶17      Because we conclude that prosecutorial laxness is not a basis for denying retrial, and because Thorstad has not established that her motion for a mistrial was induced by prosecutorial overreaching, we hold that the double jeopardy provisions of the United States and Wisconsin Constitutions do not prohibit retrial in this case.

“Prosecutorial overreaching” requires a “culpable state of mind” “designed … to provoke a mistrial” because the case “is going badly” or to harass the defendant with successive prosecutions, ¶10, quoting State v. Copening, 100 Wis. 2d 700, 714-15, 303 N.W.2d 821 (1981).

The court separately holds that the State’s failure to consent to jury waiver, so the trial could continue to the court, didn’t bar retrial as a matter of due process:

¶21      The focus of Thorstad’s due process argument is on the State’s refusal to continue the trial to the court after the jury was excused.  Thorstad argues that this prejudiced her and deprived her of due process, and therefore she should not be retried.  Thorstad cites Singer v. United States, 380 U.S. 24, 37-38 (1965), as support for her contention that there may be some situations where the defendant can insist upon a bench trial.  In Singer, the Supreme Court upheld the validity of a federal rule of criminal procedure permitting a defendant to waive the right to a jury trial only with the consent of the government and approval of the court.  Id. at 37.  The petitioner in Singer had argued that, in some cases, “passion, prejudice, public feeling, or some other factor may render impossible or unlikely an impartial trial by jury.”  Id.at 37-38.  However, because the petitioner had requested a bench trial only to “save time,” the Court did not address whether there may be situations where the government must consent to a bench trial.  Id. at 38.

¶22      We disagree with Thorstad that this is the type of situation where the State’s insistence on trial by jury could result in the denial to the defendant of an impartial trial upon retrial.  See id. at 37.  Thorstad has not alleged that the State’s refusal to continue without a jury in any way affects her right to be tried by an impartial jury: she can be retried by a jury that was not exposed to the testifying officer’s comment regarding her prior contact with law enforcement.  Accordingly, we reject Thorstad’s assertion that she was denied due process when the State refused to forego a jury trial and continue with a bench trial and that therefore retrial is barred.

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