QP: Does the Double Jeopardy Clause bar retrial when judicial misconduct leads to a defense-requested mistrial, even without specific intent to provoke such a motion?

Does the fundamental protection against double jeopardy , preserved in the Fifth Amendment to the United States Constitution, bar retrial when judicial misconduct leads to a defense request for a mistrial? Does that rule bar retrial even if a trial judge did not specifically intend to cause a defense mistrial motion ? On these question s, this Court ’s past decisions are in noted conflict. To resolve it, should Oregon v. Kennedy , 456 U.S. 667 (1982), be limited to apply only in cases of prosecutorial misconduct? These questions are important, but they have not been answered in a case with facts that truly raise them. Sup. Ct. R. 10(c) . This Court had earlier warned against “a judge” who “exercises his authority to help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused.” Gori v. United States , 367 U.S. 364, 369 (1961) . In such decisions, intentional judicial misconduct was itself described as serious enough to bar retrial after a defendant’s inevitable mistrial motion. United States v. Dinitz , 424 U.S. 600, 611 (1976); see United States v. Jorn , 400 U.S. 470, 485 n.12 (1971) . Yet in Kennedy , this Court narrowed the retrial bar to those cases in which the objective facts and circumstances indicate that someone in government specifically “intended to provoke the defendant into moving for a mistrial.” Kennedy , 456 U.S. at 679. While this Court only tacitly extend ed the Kennedy rule to judicial misconduct cases , the lower courts have consistently done so . But Kennedy was a case about prosecutorial acts, not misconduct behind the bench , and its logic flows from the inherent role of prosecutors in the adversarial ii system. With these earlier decisions suggesting that judicial misconduct could itself trigger the retrial bar , this Court should consider whether the narrower Kennedy rule makes any sense at all as applied to judicial conduct that precipitat ed a defense request t o terminate trial . That question was beyond the scope of the disputed issues in Kennedy . And this appeal presents the perfect vehicle because there can be no doubt that the Honorable Judge John J. Russo (“Judge Russo”) initiated an ex parte communication with prosecutors through his bailiff, Kathleen Dunham (“ Bailiff Dunham”) on the most contested legal issue of substance, even if lower courts ruled that he had not specifically intended to draw Petitioner Shomo’s demand for a mistrial. Whatever his motivations were, Judge Ru sso’s misconduct place d Shomo in the impossible position of choosing between submitting the dispute to a particular jury or seeking a new proceeding before a truly impartial jurist, which would itself “subvert the protections afforded by the Double Jeopardy Clause. ” Kennedy at 676.