In U.S. v. Jordan, No. 04-15381 (Nov. 3, 2005), the Court (Anderson, Black, Carnes), on a defendant’s interlocutory appeal, held that there was no basis for a Double Jeopardy bar to a second trial after the first trial had ended because the district court had found prosecutorial misconduct, but the Court of Appeals had determined that there was, in fact, no prosecutorial misconduct.
The defendant argued that even though the Court of Appeals had found no prosecutorial misconduct, the intent of the prosecutor was to goad the defense into making a motion for a mistrial, and that even though this motion was ultimately unsuccessful, Double Jeopardy should prevent further prosecution because the prosecution’s intent was wrongful.
The Court rejected the argument finding that it was precluded by the law of the case doctrine. The Court noted that a jurisdictional premise for its prior decision, which found no prosecutorial misconduct and reversed the district court’s dismissal of the case, was that Double Jeopardy would not bar further jurisdiction. Having held in its prior decision that it had jurisdiction to consider the government’s appeal, the Court implicitly held that Double Jeopardy would not bar further prosecution. This holding was now the law of the case, and doomed a Double Jeopardy challenge to further prosecution.
The Court further stated that, even if the law of the case had not applied, and even if it accepted the defendant’s "far fetched" theory that the prosecution opposed dismissal of the case on prosecutorial misconduct grounds while really trying to goad the defendant into seeking dismissal of the case, this theory would not support a Double Jeopardy bar. The Court held that prosecutorial misconduct – which it had no found present in this case – was a necessary element for a Double Jeopardy bar to apply in these circumstances.
