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California law provides criminal defendants with greater double jeopardy protections than does the federal Constitution, the state Supreme Court ruled unanimously Monday. However, the court set a high bar for defendants to meet, and, in the gang-related murder case at hand, held that the state’s double jeopardy standard should not have barred retrial. In People v. Batts, 03 C.D.O.S. 4153, Los Angeles County Superior Court Judge Jack Morgan ordered a mistrial in 1999 after prosecutors coaxed a police detective into stating during a gang-slaying trial that a key witness — Benczeon Jones, the brother of murdered gang member Brian Jones — had himself been killed before trial. State law prohibits jurors in gang-killing cases from being told that a witness has been murdered, and Judge Morgan had ordered that jurors be told the deceased witness was simply unavailable. Despite the prosecutors’ misconduct, the judge felt they had not acted intentionally and denied a defense motion to bar retrial based on double jeopardy. But L.A.’s Second District Court of Appeal reversed in 2001 and ordered the cases against gang members Tracy Batts and Terrance McCrea dismissed. Monday’s high court ruling reversed the appeal court and held that California’s protections against double jeopardy are stronger than the federal standards, which, as stated in 1982′s Oregon v. Kennedy, 456 U.S. 667, prohibit retrial only if prosecutors committed misconduct with the intention of provoking mistrial. But while stating that the state’s standards are more stringent, the state Supreme Court gave trial court judges a more active role in the final outcome, which could be problematic for criminal defendants. “The standard we adopt,” Chief Justice Ronald George wrote, “requires not only that the prosecutor subjectively believe that an acquittal was likely when he or she intentionally committed misconduct, but also that a court determine from an objective perspective that the misconduct actually deprived the defendant of the reasonable prospect of an acquittal.” “The remedy mandated by the double jeopardy clause,” George continued, “is an unusual and extraordinary measure that properly should be invoked only with great caution.” The state’s case against Batts and McCrea, the chief justice ruled, “still was quite strong and, from an objective perspective, the prosecutorial misconduct did not deprive defendants of a reasonable prospect of an acquittal.” In a concurring and dissenting opinion, Justice Carlos Moreno agreed with the majority’s decision on the broader issue of double jeopardy protections, but disagreed about them not applying to Batts and McCrea. “I have no doubt,” Moreno wrote, “that the prosecutor intentionally violated both the trial court’s order and Evidence Code � 1231.4, knowing it would provoke a mistrial.” San Francisco lawyer Chris Redburn, who represented Batts, and Spring Valley solo practitioner Barbara Smith, McCrea’s attorney, expressed pleasure at the court’s broader interpretation of double jeopardy protections, but they were upset for their own clients. “The Supreme Court has missed a golden opportunity to hold these California lawyers accountable for blatant misconduct,” Redburn said. “It has allowed a double jeopardy violation against Mr. Batts to go unremedied.” Smith said the court’s decision “will signal prosecutors in this state that they can do what they want to get a conviction, whatever the Constitution says.” Los Angeles Deputy Attorney General David Wildman, who argued the case, said the ruling was an “interesting way for the court to go,” but thought the issue wouldn’t come up too often as a practical matter. Prosecutors, he said, don’t routinely commit misconduct intentionally. “Obviously,” he added, “we are pleased with the result that two murderers are not going to be released.”

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