IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 :

v. : CRIMINAL NO. 05-125-01

 :

KENNETH WILLIAMS :

 

MEMORANDUM AND ORDER

Fullam, Sr. J. July 19, 2005

The defendant’s trial on drug charges commenced on June

20, 2005, but ended the next morning, when the court granted

defendant’s motion for a mistrial. The defendant has now filed a

motion to dismiss the Indictment, asserting that a retrial is

barred by the Double Jeopardy Clause of the United States

Constitution, since the mistrial was intentionally triggered by

the prosecutor.

In the course of cross-examining the defendant, the

prosecutor asked, “As a matter of fact, you have two prior

convictions for selling drugs?” Defense counsel objected, the

objection was sustained, and a sidebar conference ensued. 

Defense counsel stated that it had been agreed before trial that

the government would not introduce any evidence of defendant’s

prior convictions, and that defense counsel was considering

moving for a mistrial. As reflected in the transcript, the

following then occurred:

“THE COURT: Are you asking for one now? 

I’m inclined to grant it, if you do, but I

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might also say if I grant a mistrial, it will

be with the condition that any retrial both

sides are represented by different lawyers. 

What’s obviously happening here is that the

police were dealing with the drugs that were

found in the house, which have been

suppressed, and they’re getting that in by

the back door, and confusing the witness. 

MR. STEPHENS: That’s not true, Judge.

THE COURT: Of course, it is.

MR. GENOVESE: Judge, it’s a point

they’re trying to get his prior convictions

in through the back door as well.

THE COURT: Don’t do it again. If you’re

not moving for a mistrial, I won’t grant it. 

(End of side bar.) 

THE COURT: The jury will disregard that

last question.”

Cross-examination then resumed, but a few questions later, the

prosecutor asked:

“Mr. Williams, back in 1998 you were

convicted of selling drugs back then;

correct?” 

At that point, defense counsel moved for a mistrial, and the

mistrial was granted.

As the record reflects, the defense objection to the

question about the defendant’s previous criminal record had been

sustained, and government counsel had been specifically

instructed not to pursue that line of questioning. Even more

specifically, government counsel had been made aware that the

only reason a mistrial had not already been declared is because

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defense counsel did not seek a mistrial. By promptly disobeying

the court’s instruction and inquiring about a seven-year-old

previous conviction, the prosecutor must have known that it would

trigger a mistrial.

At argument, the prosecutor represented to the court

that he did not intend to cause a mistrial, and offered to

present evidence in support of his good reputation as a

prosecutor who would never dream of intentionally causing a

mistrial.

It is clear that mere harassment or overreaching which

results in a mistrial is not enough to bar retrial under the

Double Jeopardy Clause. “Only where the governmental conduct in

question is intended to ‘goad’ the defendant into moving for a

mistrial may a defendant raise the bar of double jeopardy to a

second trial after having successfully aborted the first on his

own motion.” Oregon v. Kennedy, 456 U.S. 667, 676 (1982). While

I have no doubt of the prosecutor’s sincerity in wishing, after

the fact, that he had not caused a mistrial, the prosecutor, like

everyone else, must be deemed to have intended the readily

foreseeable consequences of his actions. I conclude that the

Indictment must be dismissed.

In the interest of completeness, it should be noted

that, at an earlier stage, this court granted a motion to

suppress the drugs and weapons allegedly found in the course of a

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warrantless search of defendant’s residence. But, on the basis

of the evidence then available, I declined to suppress the fruits

of defendant’s interview with the police. It now appears, on the

basis of the evidence presented at trial, that defendant’s

written and oral statements should also have been suppressed on

grounds of involuntariness, as the fruits of the unlawful search

of defendant’s residence (the police coerced defendant’s

statements by telling him that his girlfriend was under arrest

and was being charged with the drugs and weapons allegedly found

in the warrantless search of the residence). Even more

important, the only incriminating statements made by the

defendant occurred after he had requested an opportunity to

review the police interview forms with his lawyer, and his

request had been denied.

An Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 :

v. : CRIMINAL NO. 05-125-01

 :

KENNETH WILLIAMS :

ORDER

AND NOW, this 19th day of July 2005, IT IS ORDERED:

1. Defendant’s motion to dismiss the Indictment is

GRANTED.

2. This court’s Order dated May 3, 2005 is AMENDED to

reflect that defendant’s motion to suppress the oral and written

statements he allegedly made to the police on August 27, 2004 is

GRANTED.

BY THE COURT:

/s/ John P. Fullam 

John P. Fullam, Sr. J.

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