Texas Double Jeopardy standard lowered to favor the prosecution
Texas prosecutors are bound by both the Federal and State Constitutions in prosecuting defendants, and sometimes the Texas Constitution provides more protections for those accused than at the Federal level.
In 1982, the U.S. Supreme Court decided Oregon v. Kennedy, which addressed what sort of prosecutorial misconduct during trial would bar the state from reprosecuting the defendant. Written by the notoriously pro-prosecution Chief Justice Rehnquist, the case laid out the federal standard: it’s not enough for the defendant to show that there was prosecutorial misconduct which made mistrial a necessity. The defendant had to show that it was the prosecutor’s intention to cause a mistrial.
Mind you, the purpose of the Double Jeopardy clause is to protect the citizen from repeated prosecutions for the same offense, and in this case, we are talking about mistrials which were caused by the prosecutor.
In 1996, in Bauder v State, the Texas Court of Criminal Appeals adopted a slightly fairer interpretation of Texas’ Double Jeopardy clause, insisting that retrial be barred where “the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial”.
“Require a mistrial” – that’s fairly egregious misconduct by the prosecutor we’re talking about – not just any old “objection sustained”. The types of things that require mistrial in Texas are pretty few and far between – for example, a prosecutor asking a witness about a prior arrest of the defendant where he had been acquitted, something that’s clearly not admissible.
Unfortunately, the Texas Court of Criminal Appeals decided to abandon the principle of stare decisis, and overruled the Bauder decision this week in a decision called Ex Parte Lewis. Basically they said it was too difficult to determine when the prosecutor had recklessly caused a mistrial, and they adopted the Oregon v. Kennedy standard instead.
Let me ask you this: if it was difficult to determine whether the prosecutor was reckless in the introduction of clearly inadmissible, unfairly prejudicial evidence against a defendant, won’t it logically now be impossible for a defendant to prove what the exact intentions of the prosecutor were who does the same thing?
