Background
Police stopped a car driven by Devante Kyran Jennings after a witness linked a similar vehicle to a shooting outside an apartment building. Officers found a loaded handgun in the glovebox, and its ammunition matched shell casings recovered at the scene. During an interview, Jennings admitted that he had been at the apartment building and was driving the car, but he declined a DNA swab and ended the interview.
At Jennings’s first trial for carrying a concealed weapon, the prosecutor elicited testimony about Jennings ending the interview and argued in closing that his decision reflected a “guilty conscience.” The trial court concluded that the prosecutor had weaponized Jennings’s invocation of his right to remain silent and granted the defense’s motion for a mistrial. Applying Oregon v. Kennedy, the court nevertheless allowed a second trial because it found no specific intent by the prosecutor to provoke a mistrial. At the second trial, the prosecution shifted to an aiding-and-abetting theory, and the jury convicted Jennings. A divided Court of Appeals affirmed.
The Court’s Holding
The Michigan Supreme Court held that Kennedy’s federal rule—which bars retrial following a defense-requested mistrial only when the prosecutor intended to goad the defendant into seeking one—does not provide the protection required by Article 1, § 15 of the Michigan Constitution. The Court reasoned that Kennedy was announced after ratification of the 1963 Constitution and was too narrow to protect longstanding interests against prosecutorial gamesmanship, harassment through successive prosecutions, and loss of the defendant’s chosen jury.
The Court instead adopted the three-part test from Pool v. Superior Court. Under that standard, retrial is barred when a mistrial results from prosecutorial misconduct; the misconduct, considered as a whole, is intentional, known to be improper and prejudicial, and pursued for an improper purpose with indifference to a significant danger of mistrial or reversal; and the resulting prejudice cannot be cured without a mistrial. The Court emphasized that ordinary legal error, negligence, mistake, or insignificant impropriety is insufficient.
The Court did not decide whether Jennings satisfied the newly adopted standard. It vacated the Court of Appeals’ judgment and remanded the case to the trial court to reconsider Jennings’s double-jeopardy claim under the Pool test.
Key Takeaways
- Michigan’s Constitution now provides broader protection than the federal Kennedy rule when prosecutorial misconduct causes a defendant to obtain a mistrial.
- A defendant need not prove that the prosecutor specifically intended to provoke a mistrial, but must establish intentional, knowingly improper conduct pursued for an improper purpose with indifference to a substantial risk of mistrial or reversal.
- The ruling did not itself invalidate Jennings’s conviction or conclusively bar retrial; the trial court must apply the new test on remand.
Why It Matters
The decision materially changes Michigan double-jeopardy law by expanding the circumstances in which intentional prosecutorial misconduct can foreclose a second trial. Misconduct aimed at avoiding an acquittal, gaining a tactical advantage, or harassing a defendant may qualify even when the prosecutor did not specifically seek to provoke a mistrial.
The standard remains demanding. Defendants must show more than negligence or prosecutorial error and must establish incurable prejudice, while trial courts must evaluate the prosecutor’s conduct as a whole and determine whether it was knowingly improper and pursued for an improper purpose.