DIVANS
v.
CALIFORNIA
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The application for a stay of the second trial is denied because the mistrial was not declared in bad faith by the prosecution or court to provoke a mistrial request.
Applicant's first trial resulted in a mistrial declared upon his motion. He now seeks to stay his second trial, claiming double jeopardy.…
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Mr. Justice Rehnquist, Circuit Justice.
Applicant has requested that I stay the commencement of his second trial in the Superior Court of Santa Clara County, Cal., pending the filing and disposition of a petition for cer-tiorari here. His first trial aborted as a result of the trial judge’s declaration of a mistrial upon applicant’s motion. I have determined the application should be denied.
Any order granting a mistrial at the behest of a defendant in a criminal case is typically based upon error or misconduct on the part of other counsel or the court. In order to elevate such a typical order into one which could form the basis of a claim of double jeopardy, it must be shown not only that there was error, which is the common predicate to all such orders, but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial.
“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,’ United States v. Jorn, [400 U. S.,] at 485 threatens the ‘[hjarassment 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. Downum v. United States, 372 U. S., at 736.” United States v. Dinitz, 424 U. S. 600, 611 (1976).
The finding of the Superior Court that the prosecutorial error which resulted in the original mistrial in this case was of the former and not the latter'kind convinces me that this Court would not grant certiorari to review the applicant’s double jeopardy claim.
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United States v. Franke Eugenio Martinez, 667 F.2d 886 (10th Cir. 1981)…F. 2d 904, 906 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2178, 60 L.Ed.2d 1055 (1979); United States v. Martin, 561 F. 2d 135, 139 (8th Cir. 1977), or whether intent to provoke a defendant to seek a mistrial is required, Divans v. California, 434 U.S. 1303, 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977) (Rehnquist, J.) (application for stay), the government’s conduct in this case is more than sufficient to bar retrial. The government’s failure to disclose the meeting to defense counsel and its misrepresentati…
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United States v. Nelson, 582 F.2d 1246 (10th Cir. 1978)…a more favorable opportunity to convict the defendant. United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267. Not every prosecutorial impropriety raises the double jeopardy bar, however, as was explained in Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (Rehnquist, J. as Circuit Justice): Any order granting a mistrial at the behest of a defendant in a criminal case is typically based upon error or misconduct on the part of other counsel or the court. In order to elevate…
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United States v. Roberts, 640 F.2d 225 (9th Cir. 1981)….S. 470, 482, 91 S.Ct. 547, 555, 27 L.Ed.2d 543. Without such a showing, retrial is not barred. See United States v. Calderon, supra, 618 F. 2d at 90; United States v. Sanders, 591 F. 2d 1293, 1296 n.4 (9th Cir. 1979). See also Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (Rehnquist, Circuit Justice, 1977). In this context the protection afforded by the double jeopardy clause must be reserved for instances in which “there has been an ‘abuse’ of the trial process resulting in prejudice to t…
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- United States v. Dinitz, 424 U.S. 600 (U.S. 1976)