Background
Devante Jennings was tried for carrying a concealed weapon. His first trial ended when the judge declared a mistrial due to prosecutorial misconduct. During closing arguments, the prosecutor highlighted Jennings’s choice to end a police interview after being read his Miranda rights, arguing it was evidence of a “guilty conscience.” The trial judge, concerned that the prosecutor had “weaponized” the defendant’s invocation of his right to remain silent, raised the issue himself.
After the judge’s intervention, defense counsel moved for a mistrial, which was granted. The defense then argued a second trial was barred under the principle of double jeopardy. The trial court denied this motion, finding the prosecutor had not specifically intended to provoke a mistrial. Jennings was subsequently convicted in a second trial.
The Michigan Court of Appeals affirmed the conviction. It applied the federal standard from Oregon v. Kennedy, which holds that retrial is only barred if a prosecutor acted with the specific intent to “goad” the defendant into requesting a mistrial. A dissenting judge argued that this standard was too narrow and urged the state’s high court to adopt a broader test to better protect defendants’ rights.
The Court’s Holding
The Michigan Supreme Court, in an opinion by Chief Justice Cavanagh, held that the double jeopardy clause of the Michigan Constitution (Art 1, § 15) offers greater protection than its federal counterpart. The Court explicitly rejected the narrow federal standard from Oregon v. Kennedy, reasoning that it fails to adequately protect a defendant’s valued right to have their trial completed before a single, chosen jury.
Instead, the Court adopted the three-part test from the Arizona Supreme Court case Pool v. Superior Court. Under this new standard, retrial is barred when: (1) a mistrial is granted due to improper conduct by the prosecutor; (2) the prosecutor’s conduct is not merely an error or mistake, but amounts to intentional action that the prosecutor knows is improper and prejudicial, and which is pursued with indifference to a significant danger of a mistrial or reversal; and (3) the resulting prejudice cannot be cured by any means short of a mistrial.
The Court found that this standard better aligns with Michigan’s pre-Kennedy caselaw and the principles underlying the state’s double jeopardy protections. Because the lower courts had analyzed the case under the now-rejected Kennedy standard, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case to the trial court for reconsideration under the newly adopted Pool test.
Key Takeaways
- Michigan’s double jeopardy clause now provides greater protection than the Fifth Amendment when a trial is aborted due to prosecutorial misconduct.
- The state has rejected the federal Kennedy standard, which required showing a prosecutor’s specific intent to “goad” a mistrial, in favor of a broader test from Arizona’s Pool decision.
- Under the new Pool standard, retrial can be barred if a prosecutor engages in intentional, improper conduct with indifference to a significant risk of mistrial, even without a specific intent to cause one.
Why It Matters
This decision marks a significant strengthening of protections for criminal defendants in Michigan. By moving away from the difficult-to-prove subjective intent standard of Kennedy, the Court has made it more feasible for a defendant to use the double jeopardy clause as a shield against a retrial tainted by serious prosecutorial overreach. The focus shifts from the prosecutor’s secret state of mind to a more objective evaluation of the improper conduct and its likely consequences.
The ruling serves as a powerful deterrent against prosecutorial misconduct. It sends a clear message that prosecutors cannot engage in conduct they know is improper and prejudicial—even if the goal is to win a conviction rather than force a mistrial—without risking that the state will lose its chance to prosecute the case altogether. This reinforces a defendant’s right to a fair proceeding and prevents the government from getting a “second bite at the apple” after its own actions derail a trial.