State v. Parker – when does mistrial result in double jeopardy

In State v. Parker, decided March 14, 2011, the S.C. Supreme Court held that where a prosecutor goads defense counsel into asking for a mistrial double jeopardy bars the re-trial of the case (nothing new here, but each new case on this provides some clarification on what constitutes “goading”).
Prosecutorial misconduct alone is not sufficient to invoke double jeopardy, but the Court must make a determination that the solicitor intended to cause the mistrial by the misconduct. In this case, the cumulative effect of showing a videotape to the jury parts of which were inadmissible, statements in closing argument disparaging defense counsel, and urging the jury to convict in order to protect the community were sufficient to show subjective intent on the part of the prosecutor to goad the defense into seeking a mistrial.
Double jeopardy protects an accused from being re-tried in three situations – following 1) an acquittal; 2) a conviction; or 3) an improvidently granted mistrial.
Where a defendant moves for and is granted the mistrial, double jeopardy only bars retrial where the prosecutor goaded the defense into seeking the mistrial, as in State v. Parker; see also State v. Coleman, 365 S.C. 258, 263, 616 S.E.2d 444, 446 (Ct.App.2005); and Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).
Where the defendant does not ask for the mistrial, there must be a “manifest necessity” for the mistrial or double jeopardy will bar the re-trial; some examples are:
– State v. Kirby, 269 S.C. 25, 27-28, 236 S.E.2d 33, 34 (1977): prosecutor’s death during trial was manifest necessity for mistrial; no double jeopardy
– State v. Gamble, 275 S.C. 492, 272 S.E.2d 796 (S.C. 1980): dismissal of two jurors, because one was related to the defendant and the other was related to the State’s chief witness, was manifest necessity for a mistrial; no double jeopardy
– State v. Rowlands, 343 S.C. 454, 539 S.E.2d 717 (S.C.App. 2000): prosecutor’s inability to produce a key witness who was under subpoena, and request for a continuance after the jury had been sworn, was not manifest necessity for a mistrial; double jeopardy barred re-trial.

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