explaining that the “intentional goading” standard was designed to protect a defendant whose motion for mistrial could not fairly be considered a result of his own free will; "[i]n such a case, the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances”
How later courts described this case
- explaining that the “intentional goading” standard was designed to protect a defendant whose motion for mistrial could not fairly be considered a result of his own free will; "[i]n such a case, the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances”
- holding that "[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause"
- holding that “[pjrosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause”
- recognizing the narrow exception that the Double Jeopardy Clause precludes retrial of a defendant whose mistrial request is granted when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a *436 mistrial”
Written by the judges who cited it.
Later courts went against this
Questioned by Ex parte Kelly, 1986 Tex. App. LEXIS 8021 (1986)
Granted, it has been questioned whether the scope of the Kennedy intent-rule embraces prosecutorial misconduct first acknowledged on appeal, see, e.g., Robinson v. Wade, 686 F.2d 298, 306-09 (5th Cir.1982), or raised after remand.
Distinguished
Distinguished by State v. Sage, 31 Ohio St. 3d 173 (1987)
Kennedy, supra, is inapplicable to the case at bar for two reasons: first, the prosecutorial misconduct in the initial trial was not calculated to goad the accused into seeking a mistrial and, second, the retrial was the result of reversal on appeal of his prior conviction.
The opinion
Justice Brennan,
with whom Justice Marshall joins, concurring in the judgment.
I concur in the judgment and join in the opinion of Justice Stevens. However, it should be noted that nothing in the holding of the Court today prevents the state courts, on remand, from concluding that respondent’s retrial would violate the provision of the Oregon Constitution that prohibits double jeopardy, Ore. Const., Art. I, § 12, as that provision *681 has been interpreted by the state courts, State v. Rathbun, 287 Ore. 421 , 600 P. 2d 392 (1979). See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (Marshall, J., dissenting), on remand, State v. Opperman, 247 N. W. 2d 673 (S. D. 1976) (original State Supreme Court judgment adhered to as a matter of state constitutional law); Oregon v. Hass, 420 U. S. 714, 726 (1975) (Marshall, J., dissenting).