By Zach Gorchow
Gongwer News Service
A defense request for a mistrial may trigger constitutional protections from retrial if the prosecution committed intentional misconduct, the Michigan Supreme Court ruled last Friday in a case with potentially significant ramifications.
For decades, Michigan courts have followed a 1982 U.S. Supreme Court precedent, the Kennedy case, that says a defense request for a mistrial only triggers double-jeopardy protections from retrial if the prosecution goaded the defense into making the request.
Traditionally, double-jeopardy protections take place when a court acquits the defendant, but they also often occur if the prosecution requests a mistrial. It is rare, however, for double-jeopardy protections to trigger when the defense requests the mistrial.
A 5-2 majority of the court, in an opinion written by Chief Justice Megan Cavanagh, held that the U.S. Supreme Court ruling on the federal constitutional language does not comport with Article I, Section 15 of the Michigan Constitution. The Michigan constitutional language says, “No person shall be subject to the same offense to be twice put in jeopardy.”
Cavanagh pointed to an Arizona Supreme Court ruling, Pool v. Superior Court, from 1984, saying it better reflects the intent of the Michigan Constitution.
The case involves an incident where Devante Jennings was charged with carrying a concealed weapon in a motor vehicle without a permit in Macomb County’s Clinton Township. During the trial, the prosecutor said there was evidence of Jennings’ “guilty conscience” and offered a hypothesis about why Jennings terminated an interview with police that he did so to avoid trouble.
The judge in the case told the attorneys the prosecutor had “essentially weaponized” Jennings’ decision to invoke his right not to testify and potentially committed prosecutorial misconduct. The defense attorney, which had not objected, moved for a mistrial, and the judge granted it.
Prosecutors later tried Jennings a second time. He was convicted and sentenced to one to five years in prison. Jennings appealed, citing a double jeopardy violation, but the Court of Appeals affirmed the conviction in 2023.
Cavanagh, writing for the majority in People v. Jennings (SC Docket No. 165764) ruled the longtime use of the U.S. Supreme Court standard in Kennedy – that only when the prosecution goads the defense into asking for a mistrial are double-jeopardy protections triggered – does not comport with the Michigan Constitution.
She noted that the Arizona Supreme Court rejected the Kennedy ruling as applicable to its state law.
A mistrial stemming from intentional improper prosecutorial conduct also triggers protections from retrial, Cavanagh wrote.
The court must analyze the Michigan Constitution to assure Michigan residents receive the protections they created, whether those exceed federal protections or not, she wrote.
“We may respectfully consider federal interpretations but need not treat such authorities as presumptively correct unless the history of the particular state provision – or the federal Supremacy Clause – demands as much,” she said. “Were it otherwise, the interpretation of Michigan’s Constitution would be subject to the changing jurisprudence of the United States Supreme Court. And such an approach would violate this court’s obligation to independently examine our Constitution to effect the intentions of its ratifiers.”
Cavanagh stressed that defendants still bear “a heavy burden to bar retrial under the standard we articulate today.” Only “intentional misconduct” by a prosecutor can trigger double jeopardy protections, she wrote.
The majority remanded the case to the Macomb Circuit Court to determine whether double jeopardy protections should be applied based on the new standard and whether the conviction should be vacated.
The opinion was signed by Justice Elizabeth Welch, Justice Kyra Harris Bolden, Justice Kimberly Thomas and Justice Noah Hood.
Justice Brian Zahra, in a dissent signed by Justice Richard Bernstein, criticized the majority for overturning 40 years of state precedent and “arbitrarily” adopting a test created by the Arizona Supreme Court.
Zahra said the majority “tramples on the clear intent” of those who ratified the 1963 Michigan Constitution.
“Regardless of how well-intentioned my colleagues may be in their search for more enlightened rights, it is an abuse of judicial power for this Court to substitute its assessment of the quality of constitutional rights over the rights understood and intended by the people who ratified our Constitution,” Zahra wrote.
The state constitutional language on double jeopardy resembles the federal language, Zahra wrote. That means the U.S. Supreme Court ruling in Kennedy, adopted into Michigan case law for decades, should hold sway, he said.
“Today, the majority of this court adopts Arizona’s more defendant-friendly test, not because it is more in line with the ratifiers’ intent than the federal test, but because the majority of this Court will do, as it has the past several terms, what it wants, when it wants, and how it wants,” he wrote.
Gongwer News Service
A defense request for a mistrial may trigger constitutional protections from retrial if the prosecution committed intentional misconduct, the Michigan Supreme Court ruled last Friday in a case with potentially significant ramifications.
For decades, Michigan courts have followed a 1982 U.S. Supreme Court precedent, the Kennedy case, that says a defense request for a mistrial only triggers double-jeopardy protections from retrial if the prosecution goaded the defense into making the request.
Traditionally, double-jeopardy protections take place when a court acquits the defendant, but they also often occur if the prosecution requests a mistrial. It is rare, however, for double-jeopardy protections to trigger when the defense requests the mistrial.
A 5-2 majority of the court, in an opinion written by Chief Justice Megan Cavanagh, held that the U.S. Supreme Court ruling on the federal constitutional language does not comport with Article I, Section 15 of the Michigan Constitution. The Michigan constitutional language says, “No person shall be subject to the same offense to be twice put in jeopardy.”
Cavanagh pointed to an Arizona Supreme Court ruling, Pool v. Superior Court, from 1984, saying it better reflects the intent of the Michigan Constitution.
The case involves an incident where Devante Jennings was charged with carrying a concealed weapon in a motor vehicle without a permit in Macomb County’s Clinton Township. During the trial, the prosecutor said there was evidence of Jennings’ “guilty conscience” and offered a hypothesis about why Jennings terminated an interview with police that he did so to avoid trouble.
The judge in the case told the attorneys the prosecutor had “essentially weaponized” Jennings’ decision to invoke his right not to testify and potentially committed prosecutorial misconduct. The defense attorney, which had not objected, moved for a mistrial, and the judge granted it.
Prosecutors later tried Jennings a second time. He was convicted and sentenced to one to five years in prison. Jennings appealed, citing a double jeopardy violation, but the Court of Appeals affirmed the conviction in 2023.
Cavanagh, writing for the majority in People v. Jennings (SC Docket No. 165764) ruled the longtime use of the U.S. Supreme Court standard in Kennedy – that only when the prosecution goads the defense into asking for a mistrial are double-jeopardy protections triggered – does not comport with the Michigan Constitution.
She noted that the Arizona Supreme Court rejected the Kennedy ruling as applicable to its state law.
A mistrial stemming from intentional improper prosecutorial conduct also triggers protections from retrial, Cavanagh wrote.
The court must analyze the Michigan Constitution to assure Michigan residents receive the protections they created, whether those exceed federal protections or not, she wrote.
“We may respectfully consider federal interpretations but need not treat such authorities as presumptively correct unless the history of the particular state provision – or the federal Supremacy Clause – demands as much,” she said. “Were it otherwise, the interpretation of Michigan’s Constitution would be subject to the changing jurisprudence of the United States Supreme Court. And such an approach would violate this court’s obligation to independently examine our Constitution to effect the intentions of its ratifiers.”
Cavanagh stressed that defendants still bear “a heavy burden to bar retrial under the standard we articulate today.” Only “intentional misconduct” by a prosecutor can trigger double jeopardy protections, she wrote.
The majority remanded the case to the Macomb Circuit Court to determine whether double jeopardy protections should be applied based on the new standard and whether the conviction should be vacated.
The opinion was signed by Justice Elizabeth Welch, Justice Kyra Harris Bolden, Justice Kimberly Thomas and Justice Noah Hood.
Justice Brian Zahra, in a dissent signed by Justice Richard Bernstein, criticized the majority for overturning 40 years of state precedent and “arbitrarily” adopting a test created by the Arizona Supreme Court.
Zahra said the majority “tramples on the clear intent” of those who ratified the 1963 Michigan Constitution.
“Regardless of how well-intentioned my colleagues may be in their search for more enlightened rights, it is an abuse of judicial power for this Court to substitute its assessment of the quality of constitutional rights over the rights understood and intended by the people who ratified our Constitution,” Zahra wrote.
The state constitutional language on double jeopardy resembles the federal language, Zahra wrote. That means the U.S. Supreme Court ruling in Kennedy, adopted into Michigan case law for decades, should hold sway, he said.
“Today, the majority of this court adopts Arizona’s more defendant-friendly test, not because it is more in line with the ratifiers’ intent than the federal test, but because the majority of this Court will do, as it has the past several terms, what it wants, when it wants, and how it wants,” he wrote.
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