In a significant development in case we wrote about last fall, a judge in Philadelphia, responding to the Commonwealth’s appeal from his order dismissing three murder indictments, and barring retrial of the defendants, has issued a carefully reasoned opinion holding that double jeopardy protection applies when prosecutors intentionally and willfully seek to undermine fair trials.
The opinion is a further step in what is a developing jurisprudence on the subject of when government malfeasance rises to such severity that permitting a new trial violates a defendant’s right to be free of double jeopardy, and as such is an important part of the discussion of how to hold prosecutors more accountable for their actions.
Buttressing a Key Witness
As Judge Benjamin Lerner describes it, Aquil Bond, Richard Brown, and Jawayne Brown were convicted in the 2002 murder of Rohan Haughton, a money runner in a bi-coastal drug operation. One of the lead witnesses against them was their confessed accomplice, Vincent Smithwick, whose testimony and plea bargain the defense vigorously questioned.
In an usual move, following Smithwick’s testimony, the Assistant District Attorney on the case, a “Mr. Cameron”, announced he would call Edward McCann, Chief of the District Attorney’s Homicide Division, and the prosecutor who had signed Smithwick’s plea agreement. When defense objected that this would amount to bolstering of Smithwick’s testimony, Cameron assured the court he would not elicit from McCann anything that qualified as buttressing Smithwick.
But as Judge Lerner quotes the appellate court that granted the three men new trials, “counsel for the Commonwealth then asked a series of questions in direct contradiction to his prior representations to the trial court regarding the credibility of Smithwick.”
In response to multiple objections, the court offered only curative instructions. And the attempt to buttress Smithwick with facts not properly in evidence didn’t stop there. In closing arguments, ADA Cameron cited five other murder cases that Smithwick had helped the Commonwealth prosecute, none of which were present anywhere in the trial record.
As Lerner writes, “[T]he misconduct in this case was repeated [and] directly defied the orders of the trial court.” That said, “the Commonwealth correctly argues that not every instance of intentional misconduct that denies a defendant a fair trial bars a retrial.”
What Triggers Double Jeopardy Protection?
The question for Judge Lerner, and for anyone interested in how this approach to prosecutorial accountability might continue to develop, is what is required, above and beyond intentional misconduct, to trigger double-jeopardy protection?
To answer this, Judge Lerner looks to the Pennsylvania Supreme Court’s decision in Commonwealth v. Smith, and subsequent cases applying Smith’s holding that double jeopardy applies in certain egregious circumstances.
While “federal law prohibits retrial on double jeopardy grounds only in cases where the prosecutorial misconduct intentionally provokes the defendant into successfully moving for a mistrial (Oregon v. Kennedy, 1982),” Pennsylvania adopted a more robust prohibition in Smith, holding that retrial was barred, when “the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.” In Smith, the prosecutor had withheld exculpatory physical evidence, and details of a plea agreement with a witness.
As Judge Lerner explains, in a later case, Commonwealth v. Martorano (1996), the Pennsylvania Supreme Court expanded the protection:
[W]hile the prosecutorial misconduct in Martorano did not involve concealment of evidence as in Smith, it nonetheless demonstrated the prosecutor’s intent to deprive the defendant of a fair trial; ignored the bounds of legitimate advocacy; and revealed a desire to win a conviction by any means necessary. It is precisely the kind of prosecutorial overreaching to which double jeopardy protection applies. [A] fair trial is not simply a lofty goal, it is a constitutional mandate … [and] [w]here that constitutional mandate is ignored by the Commonwealth, we cannot simply turn a blind eye and give the Commonwealth another opportunity.
That second opportunity is what Pennsylvania was seeking when it attempted to re-try the Bond defendants in front of Judge Lerner, before he barred them from doing so. The Superior Court that overturned the original convictions, and granted the new trials, had already held that ADA Cameron’s behavior was “highly prejudicial to the defendants and when considered in the context of the atmosphere of the trial as a whole, constituted deliberate attempts to destroy the objectivity of the jury and prevent the jury from rendering a true verdict” (Judge Lerner’s emphasis).
What particularly seems to offend Judge Lerner, and inclined him to grant the defense’s motion to dismiss the indictments altogether on double jeopardy grounds, is the “intentional” behavior “in direct defiance of an explicit trial court order,” not to bolster Smithwick. In short, ADA Cameron promised the court to follow the rules, and then deliberately and immediately violated them.
In sum, then, what Bond suggests, albeit without the value as precedent of an appellate or Supreme Court opinion, is that what ought to trigger double jeopardy protection for defendants whose constitutional rights have been violated at trial is evidence of intentional misconduct that aims to prevent the jury from rendering a true verdict and is in defiance of specific court instructions.
As one would expect, the Commonwealth has appealed Lerner’s opinion, and it remains to be seen if its holding will be sustained. For now however, as Aquil Bond’s lawyer, Michael Wiseman, put it when asked to comment on the outcome, “Judge Lerner is to be credited for his careful and thoughtful analysis of the misconduct in this case. Defense counsel face such misconduct on a daily basis, and it is heartening to see a prosecutor being held to account.”
Needless to say, if such a standard came to be applied in even a small number of cases across other jurisdictions, it could have a profound effect on the calculations of prosecutors who rely on compliant judges and the harmless error doctrine to game out the daily misconduct Wiseman refers to.