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When California Supreme Court Justice Marvin Baxter asked Deputy Attorney General David Wildman his thoughts on Wallach II during oral arguments in San Francisco on Thursday, the Los Angeles lawyer stood silent for what felt like eons. “It’s a very simple question,” Baxter finally said. When Wildman answered, it was not a direct response about Wallach II, and he appeared to be bluffing his way through an awkward moment. Then he said he had seen the case mentioned in briefs. “In whose briefs?” Justice Ming Chin asked. After more shuffling by Wildman, Chin asked bluntly: “Are you familiar with this case?” Wildman was not. But he was in good company. Neither of the opposing defense lawyers had heard of it either — which they freely admitted when they took their turns at the podium. “As the questions from this bench indicate,” Justice Joyce Kennard said, “we consider the federal circuit’s decision in Wallach important.” It was just the beginning of a rough day for both sides, as the justices laid into the lawyers on several matters, including failing to brief the issue the court expressly sought briefing on in granting review. The case that was on the justices’ minds Thursday is U.S. v. Wallach, 979 F.2d 912, a 1992 ruling, commonly called Wallach II, out of the Second Circuit U.S. Court of Appeals in New York. Wallach said the Fifth Amendment’s double jeopardy clause could bar retrial if there was prosecutorial misconduct intentionally aimed at preventing an acquittal that the prosecutor believed was likely to occur otherwise. The ruling is viewed as an extension of Oregon v. Kennedy, 456 U.S. 667, in which the U.S. Supreme Court in 1982 held that the Fifth Amendment bars retrial when the prosecution’s misconduct was intended to provoke the defense into seeking a mistrial. The California justices Thursday wanted to know if Wallach II was consistent with Kennedy. Unfortunately, no one had an answer. In the case being argued, People v. Batts, S101183, Los Angeles Superior Court Judge Jack Morgan had ordered a mistrial in 1999 after prosecutors coaxed a police detective to state during a gang-slaying trial that a key witness — the victim’s brother, Benczeon Jones — had been murdered. This was despite a state statute that explicitly prohibits jurors from being told that a witness has been murdered in gang-related cases and in spite of the trial judge’s admonition that jurors be told the deceased witness was simply unavailable. Even though the judge was angry that the prosecutors had ignored his instructions and felt they had inflamed the jury, he didn’t believe they had acted intentionally. So he dismissed a defense motion to bar retrial based on double jeopardy. Los Angeles’ Second District Court of Appeal reversed, ordering the trial court in an unpublished 2001 ruling to dismiss the cases against Tracy Batts and Terrance McCrea. “The record leaves no doubt that the prosecutors knew their scheme would provoke a mistrial,” the court held, citing Kennedy. “Any protestations to the contrary ring hollow.” The court ordered its opinion forwarded to the State Bar. On Thursday, the high court appeared to be focusing on whether California’s constitution provides broader double jeopardy protection than the Fifth Amendment. Since neither the state standards nor Wallach was briefed, it’s a little unclear how, or if, the two relate. Which was the court’s point. When San Francisco solo practitioner Chris Redburn, who represents Batts, said he and co-counsel Barbara Smith, a Spring Valley solo who represents McCrea, had only briefed the federal standard because they felt it was sufficient for their case, he got a rebuke from the bench. Chief Justice Ronald George pointed out that the court had specifically requested review on the applicability of state and federal protections. “It’s not the matter of the parties to limit review,” he said brusquely. Justice Baxter chimed in to say he couldn’t understand the defense lawyers’ position. “I’m bewildered by this,” he said. “If there is a difference between state and federal standards, it inures to the advantage of your client.” He added that the court had given the lawyers a review grant that indicated the state standard “might be less onerous.” When her turn came, Smith happily invited the court to establish a broader state standard, even though she hadn’t briefed the issue. “If Mr. McCrea could get a reversal on the state standard,” she said, “I’d take it.” On rebuttal, Deputy AG Wildman found out quickly that the justices weren’t through pounding on him either. What happened in this case? Justice Kennard wanted to know. Was there a violation of the rules outlined in Kennedy? No, Wildman replied. Was it misconduct? George asked. “It was a tactical error,” Wildman said. “It’s just tactical error?” George replied. “It’s not misconduct to intentionally disregard a judicial order?” Afterward, Redburn and Smith said they would rush right out and get a copy of Wallach II. “The issue they’re trying to get to,” Redburn said, “was not raised anywhere else.”

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