During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The DA also commented on witnesses whom Smith had not called. Defense counsel moved for a mistrial because the DA’s belittling of public defenders stigmatized their clients, and his comment about her failure to call witnesses improperly shifted the burden to the defense. The circuit court granted the mistrial.
Generally, double jeopardy does not bar a retrial after a mistrial. There is an exception for mistrials due to prosecutorial overreach under State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981). Smith moved for a mistrial on this basis.
Copening adopted a two prong-test for determining prosecutorial overreach. It occurs when: (1) the DA’s actions are intentional such that he is aware that his activity would prejudice the defendant; and (2) the DA’s actions are designed either to create a second chance to convict because the first trial is going badly or to harass the defendant with successive prosecutions. Opinion, ¶15.
The court of appeals held that the record supported the circuit court’s findings of fact that the DA was inexperienced and did not understand what he was saying. Therefore, Smith failed to satisfy Copening.
¶16 At the hearing on Smith’s motion to bar retrial, the trial court noted that with regard to the first element of the Copening test—whether the prosecution’s actions were intentional—it was a “close question.” The court observed that when it granted Smith’s motion for a mistrial, it used the phrase “should have known”: the prosecutor should have known that his references to potential defense witnesses were improper in that they inferred that the burden of proof was on the defense; and he should have known that his description of certain “tactics” employed by the public defender’s office—and the tone of voice he used in describing them—could prejudice the defense.
¶17 Nevertheless, the trial court acknowledged that the Copening test requires that the prosecution’s acts were “intentional in the sense of a culpable state of mind[.]” See id., 100 Wis. 2d at 714. The court determined that due to his inexperience, the prosecutor likely did not “understand the implications of the
things he was saying.”
¶18 With regard to the second element—whether the prosecutor was trying to provoke a mistrial—the trial court found that to be “clear-cut.” The court described the prosecutor’s response to the motion for mistrial as “almost … apoplectic” and that he seemed “shocked” when the court granted the motion. The court stated that it believed that the prosecutor did not “understand … the prejudicial nature of the statements he had made.” Therefore, the court found that the prosecutor had not “made those statements with any designs to cause a mistrial.”
¶19 The record supports those factual findings of the trial court; therefore, they are not erroneous.