Commonwealth v. Virtu

LARSEN, Justice,

dissenting.

I dissent to the unwarranted and undesirable expansion of the narrow exception to the general rule that, where a mistrial is granted at the behest of the defendant, his reprosecution will ordinarily not be prohibited by double jeopardy considerations.

?b' narrow exception was engrafted in United States v. Dinitz, 424 U.S. 600 , 96 S.Ct. 1075 , 47 L.Ed.2d 267 (1976). The United States Supreme Court there recognized that, in certain limited circumstances, the misconduct of the prosecution might be so extreme that, even though the defendant moved for a mistrial, that fact would not prevent him from asserting the Double Jeopardy Clause of the Fifth Amendment. Dinitz held:

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad faith conduct by judge or prosecutor’ . . . threatens the ‘harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. . . . ” Id. at 611 , 96 S.Ct. at 1081 (citations omitted).

The scope and breadth of the above-quoted language creating the Dinitz “overreaching” exception is not free from doubt. There have been at least two “reasonable” interpretations of Dinitz by members of this Court. Commonwealth v. Starks, 490 Pa. 336 , 416 A.2d 498 (1980) read this Dinitz passage as creating two types of prosecutorial overreaching requiring the discharge of a defendant on double jeopardy grounds. 1 “First there is the prosecutorial *71 misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant.... Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant.... ” Id., 490 Pa. at 341 , 416 A.2d at 500 . 2 (citations omitted). This is the approach followed by the majority herein.

Justice Pomeroy took a much different approach in Commonwealth v. Potter, 478 Pa. 251 , 386 A.2d 918 (1978). In an opinion in support of affirmance (joined by Eagen, then C.J., and O’Brien, then J.), Justice Pomeroy read Dinitz more restrictively. In his view, only prosecutorial misconduct calculated to provoke a mistrial in order to secure another, possibly more favorable, opportunity to convict the accused was misconduct of a severity sufficient to warrant the drastic remedy of discharge. In fact, this view left this Court’s pre-Dinitz posture intact. (See Commonwealth v. Metz, 425 Pa. 188 , 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555 , 227 A.2d 177 (1967); and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180 , 220 A.2d 859 (1966).

The majority today holds “[i]f protection against double jeopardy is to have any meaning at all, it must be invoked when an initial trial has been aborted as result of a bad faith strategy pursued by the prosecution in a deliberate effort to prejudice the accused in the presence of the jury.” (At 203). This holding, it seems to me, expands even Starks beyond its limits, and is certainly well beyond the parameters of the exception mandated by Dinitz .

In the instant case, we are faced with a single instance of prosecutorial misconduct. The misconduct was serious and clearly warrants a new trial. I cannot, however, counte *72 nance the majority’s characterization of this conduct as an “extraordinary course of prosecutorial overreaching.” Initially, there is no suggestion that assistant district attorney Fagan intended to provoke a mistrial request (thus, under the Pomeroy-Potter approach, there would be no prosecutorial overreaching.) Therefore, to qualify as Dinitz overreaching (as interpreted by Starks), appellant must demonstrate that Fagan’s actions constituted “prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant.”

To rule that a single instance of prosecutorial misconduct, as we have here, rises to the level of bad faith/harassment type overreaching, especially in the absence of a finding of bad faith by the lower court, 3 in effect elevates all non-inadvertent prosecutorial misconduct to Dinitz overreaching status, since virtually all prosecutorial trial tactics are designed to prejudice the accused’s prospects for acquittal. Every deliberate act which was later determined to be prosecutorial misconduct would thus entitle the defendant to discharge. Such a windfall (discharge) was not contemplated by the United States Supreme Court in Dinitz except in the most extreme situations. The Court there noted “the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.” 424 U.S. at 610, n.13 , 96 S.Ct. at 1081, n.13 ; quoting United States v. Jorn, 400 U.S. 470, 484 , 91 S.Ct. 547, 556 , 27 L.Ed.2d 543 (1971).

In my opinion, “ ‘bad faith conduct by judge or prosecutor’ [which] threatens the ‘harassment of an accused by successive prosecutions or declarations of a mistrial’ ...” does not embrace a single instance of overzealousness on the part of a *73 prosecutor unless that single instance was designed to provoke a mistrial in order to secure a more favorable opportunity to convict. I am not in complete accord with Justice Pomeroy’s approach in Potter , however, as I can conceive of cases where the governmental machinery is used in a heavy-handed and oppressive fashion to harass and/or convict an individual without attempting to provoke a mistrial. For example, the prosecution’s knowing use of false and perjured testimony would rightly cause the government to lose its opportunity for a second prosecution of that defendant based on whatever legitimate incriminating evidence remained even though the prosecution in such a case may not have been attempting to provoke a mistrial; this bad faith harassment of the defendant and the severe blow to the integrity of the judicial process would outweigh society’s interest in reprosecuting the defendant. Under some conceivable circumstances, then, the “Pomeroy-Potter” approach would not give sufficient consideration to the interests of the accused or the integrity of the judicial process.

Conversely, the Starks approach, as applied in the instant proceedings, overemphasizes those interests to the disproportionate detriment of society’s interests. Bad faith harassment as identified by Dinitz implies something more than an isolated instance of one prosecutor’s indiscretion, even if deliberate. Society’s desire to prevent the guilty from going unpunished will ordinarily outweigh the risk of harassment and the burdens the defendant will incur in going through a second trial. Commonwealth v. Wright, 439 Pa. 198, 201 , 266 A.2d 651, 653 (1970). These societal interests are substantial enough to outweigh the damage done by most prosecutorial misconduct.

Prosecutors, like judges, are imperfect human beings. They can get caught up in, and carried away by, the passion of an emotional trial. Sometimes, as here, they are overzealous and they deliberately employ unprofessional, prejudicial tactics. Such tactics cannot and will not be ignored! How *74 ever, the price demanded by the majority for such prosecutorial tactics is excessive. In the instant case, society loses the opportunity to prove the guilt or innocence of one who stands accused of arson and murder because of the transgression of the prosecutor, Mr. Fagan. In this case, as in most cases of prosecutorial misconduct, the unfairness to the defendant can be remedied by the grant of a new trial.

I agree with the majority that conduct such as Mr. Fagan’s damages the integrity of the criminal justice system, but I cannot accept its determination that the discharge of a possible arson/murderer is necessary to restore that integrity. The integrity of the judicial process is equally tarnished by “remedies” which place total (myopic) focus on the rights of the accused while relegating the every-bit-as-important interests of society to the back seat. To safeguard the integrity of the judicial system, I would recommend, in all cases where noninadvertent prosecutorial misconduct is found, that the matter be referred to the disciplinary board for proper sanctions. The threat of disciplinary action for such misconduct would be a more direct and effective deterrent to prosecutorial misconduct than the possibility that the defendant might be discharged at some remote time following exhaustion of all appeals.

Only in the rare case where the prosecutor has deliberately acted to prompt a mistrial request (as where the case is going badly and the prosecutor contrives to get a second chance) or where the prosecution is oppressive and repugnant in its bad faith use of heavy-handed tactics (as where false evidence is knowingly used to bolster a weak case) should the drastic remedy of discharge be ordered. Only in such cases does the damage to the individual outweigh society’s interests and the double jeopardy clause require the defendant’s discharge. This is not such a case, because the harm to this defendant can be cured by a retrial, and is far outweighed by the societal interests in having a final adjudication of his guilt or innocence.

. This author concurred in the result only in Starks .

. This approach, which recognizes two types of overreaching, discards the notion held by Justice Roberts in Commonwealth v. Bolden, 472 Pa. 602 , 373 A.2d 90 (1977) and Commonwealth v. Potter, 478 Pa. 251 , 386 A.2d 918 (1978) (Roberts, J., opinion in support of reversal) that “gross negligence” on the part of the prosecutor might suffice to constitute Dinitz overreaching. Justice Roberts authored the majority opinion in Starks .

. The majority admits the fact finding procedure is incomplete. This is because the lower court, apparently applying the Pomeroy-Potter standard, found that Fagan had not intended to provoke a mistrial and, thus, did not consider the issue of bad faith harassment.