SIXTH DIVISION SEPTEMBER 30, 2010
No. 1-09-1001
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 85 C 6850 ) EVAN GRIFFITH, ) The Honorable ) John J. Fleming, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the opinion of the court.
Defendant Evan Griffith was convicted of felony murder in a
jury trial in 1999, during which, according to the published
opinion of this court, prosecutor Laura Morask engaged in
numerous instances of prosecutorial misconduct, which "called
into question the State's commitment to fair and just
enforcement of the law." People v. Griffith, 334 Ill. App. 3d
98, 119, 777 N.E.2d 459 (2002). Nevertheless, "the overwhelming
evidence in support of the felony murder charge *** constrained
[this court] to affirm Griffith's conviction and sentence."
Griffith, 334 Ill. App. 3d at 121. In 2008, a federal district
court, quoting at length from the scathing review by this court
of the prosecutor's trial conduct, granted the defendant's
petition for a writ of habeas corpus and ordered a new trial.
The district court found prosecutor Laura Morask's "misconduct
'so infected the trial with unfairness as to make the resulting
conviction a denial of due process.' " United States ex rel. No. 1-09-1001
Griffith v. Hulick, 587 F. Supp. 2d 899, 911, 912-13 (N.D. Ill.
2008) (mem. op.), quoting Darden v. Wainwright, 477 U.S. 168,
181, 91 L. Ed. 2d 144, 157, 106 S. Ct. 2464, 2471 (1986). The
State did not appeal the grant of the defendant's petition, but
instead obtained a new indictment against the defendant. Before
the circuit court of Cook County, the defendant filed a motion
to dismiss the new indictment on double jeopardy and due process
grounds, which Judge John J. Fleming denied. Before this court,
in his interlocutory appeal, the defendant concedes "the current
case law in Illinois would not apply the Double Jeopardy bar to
his case" because both the Supreme Court of the United States
and the Illinois Supreme Court require the intent behind the
prosecutor's misconduct be to goad the defendant into seeking a
mistrial to trigger the double jeopardy bar to a retrial. He
urges that we read the double jeopardy clause of the Illinois
Constitution much as the supreme courts of Oregon, Arizona, New
Mexico, Pennsylvania, and Hawai'i, have read their respective
constitutional double jeopardy provisions to provide expanded
protection to bar a retrial when "intentional and systematic"
prosecutorial misconduct deprives a defendant of fundamental
fairness at trial. The State responds that only our supreme
court can change current law and that under existing Illinois
law, Illinois courts have repeatedly found unavailing similar
claims based on prosecutorial misconduct for failure to
demonstrate the prosecution intended to cause a mistrial. We
2 No. 1-09-1001
agree with the State. The defendant's retrial is not barred
under current Illinois law, by which we are bound. We do not
consider the defendant's separate due process claim because it
is not subject to review on interlocutory appeal. We affirm.
BACKGROUND
This case has now been recounted in multiple court
decisions during its more than decade-long history: Griffith,
587 F. Supp. 2d 899; People v. Griffith, No. 1-03-0713 (March
22, 2005) (unpublished order under Supreme Court Rule 23);
Griffith, 334 Ill. App. 3d 98; People v. Griffith, No. 1-96-0112
(April 24, 1997) (unpublished order under Supreme Court Rule
23). We relate only the procedural history and the facts
necessary to address the issue before us. As the defendant
asserts, many of the facts are beyond dispute under the doctrine
of collateral estoppel, citing People v. Tenner, 206 Ill. 2d
381, 396-97, 794 N.E.2d 238 (2002).
On May 11, 1985, 16-year-old Evan Griffith stabbed and
killed 46-year-old Leroi Shanks, a former neighbor who had
permitted the homeless Griffith to stay with him in exchange for
sexual favors. In 1986, Griffith pleaded guilty to murdering
Shanks and received a 35-year sentence.
The defendant filed a postconviction petition, contending
he pleaded guilty and accepted the 35-year sentence because he
was told that he was otherwise eligible for the death penalty.
He later learned, however, that he was not death-penalty
3 No. 1-09-1001
eligible because he was a minor at the time of the offense. His
conviction, arising from an involuntary plea of guilty, was
vacated, and a new trial ordered. Griffith, No. 1-96-0112.
Prosecutorial Misconduct
In 1999, the defendant proceeded to a jury trial on the
1985 murder of Shanks. The defendant claimed self-defense.
During his testimony, he suggested that his actions were
motivated by fear that Shanks would kill him, hurt him, or
sexually abuse him, when Shanks, returning home, found the
defendant had broken into a safe Shanks kept in his home. The
State and the defendant presented various experts regarding the
defendant's mental state at the time of the killing.
Lead prosecutor Laura Morask sought the trial court's
permission to examine the defendant and his expert witness
regarding a 1990 incident that occurred while the defendant was
incarcerated for Shanks' murder. In that incident, the
defendant was tried and convicted before a jury of killing a
fellow inmate and was sentenced to death.1 Prosecutor Morask
told the court it was necessary to inquire into the 1990
incident to negate the defense theory that the defendant was
influenced by post-traumatic stress disorder (PTSD) when he
killed Shanks. Griffith, 334 Ill. App. 3d at 117. She claimed
1 In 2003, Illinois Governor George Ryan commuted his
sentence to life in prison.
4 No. 1-09-1001
the State's expert had examined the 1990 records and found them
relevant to rebut the PTSD defense. The trial court expressed
concern that evidence of the 1990 incident would unduly
prejudice the defendant, but nonetheless allowed the prosecutor
to raise the 1990 incident based on her representation that she
would "sanitize" the evidence and avoid calling the 1990
incident a "murder." Griffith, 334 Ill. App. 3d at 117. She
stated, " 'We don't have to go into that the victim died, what
his sentence was, or any of that. *** We don't have to put in
the fact that he was in prison when the stabbing occurred.' "
Griffith, 334 Ill. App. 3d at 117.
The State's expert had in fact never seen records of the
1990 incident and knew nothing about them. Griffith, 334 Ill.
App. 3d at 117. On cross-examination of the defendant's expert,
the prosecutor broke her promise not to reference the 1990
"murder." Griffith, 334 Ill. App. 3d at 117. In the ensuing
sidebar, she moved to strike her remark and then referenced "the
1990 murder" during closing argument. Griffith, 334 Ill. App.
3d at 118. The prosecutor also intimated on cross-examination
of the defendant that the 1990 incident took place in a prison.
The trial court had prohibited the prosecution from
informing the jury that the 1990 incident had resulted in a
conviction, but the prosecutor noted on cross-examination of the
defendant's expert that the expert had been hired after the 1990
5 No. 1-09-1001
incident "to lessen [someone's] sentence." Griffith, 334 Ill.
App. 3d at 118. According to the trial court's instructions,
the jury was not to know the defendant had been sentenced to
death for the 1990 murder, but upon cross-examination of another
defense expert, the prosecutor indicated the expert had
previously been retained in another case by the "Capital
Resource Center," and stated the Center "deals with trying to
get a prisoner not to get the death penalty." Griffith, 334
Ill. App. 3d at 118.
During her rebuttal argument, the prosecutor likened the
defendant to "walking barbeque tongs." Griffith, 334 Ill. App.
3d at 119. Regarding the 1990 killing, she argued the defendant
just "stuck his arm out and [the victim] just happened to fall
onto the knife." Griffith, 334 Ill. App. 3d at 119. With that
skill, the defendant could be "worth a lot of money. You would
put him near your barbeque and hot dogs and hamburgers just fly
on and get poked by him." Griffith, 334 Ill. App. 3d at 119.
She compared the defendant to " 'a grenade in a baby carriage' "
that " 'explodes in your face' " (Griffith, 587 F. Supp. 2d at
906), and called him a " 'deranged Energizer bunny' " (Griffith,
587 F. Supp. 2d at 912). She said that accepting the argument
by defense counsel would give the defendant a " 'license to
kill' " and individuals like defense counsel were " 'the reason
Shakespeare said let's kill all the lawyers.' " Griffith, 334
Ill. App. 3d at 119. She called the defendant's witnesses " 'a
6 No. 1-09-1001
joke,' " " 'ridiculous,' " and " 'pathetic.' " Griffith, 587 F.
Supp. 2d at 906.
The defendant moved for a mistrial several times during the
trial, with the trial court denying each motion. Griffith, 587
F. Supp. 2d at 904. The jury found the defendant guilty of
felony murder and armed robbery. He was sentenced to life in
prison without the possibility of parole.
The Appeals
The defendant appealed his conviction, arguing, among other
claims, that he was denied due process and a fair trial because
the lead prosecutor committed numerous instances of misconduct,
in particular, her use of the 1990 killing by the defendant. We
found "the prosecutor had no intention of limiting evidence of
the 1990 killing to the question of whether Griffith had PTSD in
1985." Griffith, 334 Ill. App. 3d at 117. The prosecutor had
used the 1990 killing "to convince the jury Griffith was a
violent and dangerous man who had a propensity to kill with a
knife." Griffith, 334 Ill. App. 3d at 117. "[Defense]
[o]bjections were made, some sustained, some overruled. It
didn't matter. Nothing stopped this prosecutor." Griffith, 334
Ill. App. 3d at 118. The "prosecutor's behavior *** called into
question the State's commitment to fair and just enforcement of
the law." Griffith, 334 Ill. App. 3d at 119.
Nevertheless, the overwhelming evidence constrained us to
affirm the defendant's conviction "despite the intentional and
7 No. 1-09-1001
systematic misconduct of the prosecutor." Griffith, 334 Ill.
App. 3d at 119. "Not only did Griffith tell three friends, the
arresting police officers, and the assistant State's Attorney he
killed Shanks for the money, he made what amounts to a judicial
confession when he testified at trial." Griffith, 334 Ill. App.
3d at 111. We found, "no rational jury could have found the
defendant not guilty of felony murder." Griffith, 334 Ill. App.
3d at 119.
Following our decision, the defendant's initial pro se
postconviction petition alleging numerous instances of
ineffective assistance of counsel was summarily dismissed.
Griffith, No. 1-03-0713, slip op. at 7. We affirmed the
dismissal because no prejudice could be shown in light of the
"evidence at trial overwhelmingly in favor of conviction."
Griffith, No. 1-03-0713, slip op. at 7.
The defendant then brought a petition for a writ of habeas
corpus before the federal district court pursuant to 28 U.S.C.
§2254 (2006). The district court found the facts of the case as
set forth in Griffith, 334 Ill. App. 3d 98, to be
uncontroverted, which it repeated, along with some additional,
uncontroverted facts gleaned from the record. Griffith, 587 F.
Supp. 2d at 901. The court found the record "confirms many
times over the Appellate Court's finding of repeated, deliberate
prosecutorial misconduct." Griffith, 587 F. Supp. 2d at 911.
It found the prosecutor's "dehumanizing [rhetoric] *** was
8 No. 1-09-1001
leveraged by her misuse of the 1990 crime evidence, the
admission of which she had obtained on false premises."
Griffith, 587 F. Supp. 2d at 912. The court concluded the
defendant's conviction was a " 'denial of due process' " that
"deprived Mr. Griffith of a fair trial." Griffith, 587 F. Supp.
2d at 912-13, quoting Darden, 477 U.S. at 181, 91 L. Ed. 2d at
157, 106 S. Ct. at 2471.
The court found the trial error was not subject to harmless
error analysis, but rather required automatic reversal because
" ' "the integrity of the proceeding was so infected that the
entire trial was unfair." ' " Griffith, 587 F. Supp. 2d at 914,
quoting Phillips v. Woodford, 267 F.3d 966, 986 n.14 (9th Cir.
2001), quoting Hardnett v. Marshall, 25 F.3d 875 879 (9th Cir.
1994). "To excuse the prosecutor's lies to the court, misuse of
evidence, and other misconduct in this case would indeed render
meaningless the principle that every defendant has a right to a
fair trial." Griffith, 587 F. Supp. 2d at 914, citing Brecht v.
Abrahamson, 507 U.S. 619, 638 n.9, 123 L. Ed. 2d 353, 373 n.9,
113 S. Ct. 1710, 1722 n.9 (1993). The court granted the
defendant's petition for a writ of habeas corpus. Griffith, 587
F. Supp. 2d at 914.
After she granted the writ, Judge Bucklo of the federal
district court entered an order on November 20, 2008, that the
defendant be "released from custody on the judgment of
conviction entered by the Circuit Court of Cook County in case
9 No. 1-09-1001
number 85 C 6850 unless, within 120 days of the entry of the
amended judgment, the State of Illinois elects to commence
proceedings to afford petitioner a new trial." The State did
not appeal the decision, but in compliance with the federal
order, filed a new indictment against the defendant.
Following his arraignment, the defendant moved to dismiss
the indictment as barred by the protection against double
jeopardy and by the due process clause of the United States and
Illinois Constitutions. The State countered that under federal
and Illinois law, there is no bar to a retrial when the reversal
of a defendant's conviction is not based on the insufficiency of
the evidence. The State emphasized that there was no evidence
the prosecution had intended to "goad" the defendant into
seeking a mistrial, which was never actually declared.
The circuit court found "[d]ouble jeopardy does not apply"
because the State acted within its discretion to retry the
defendant within 120 days. It also noted the trial had ended
not in a mistrial, but in a conviction that was later
overturned. Relying on People v. Sales, 357 Ill. App. 3d 863,
830 N.E.2d 846 (2005), the court declined to reach the issue of
the prosecution's intent in the absence of a mistrial, which
precludes a finding of a double jeopardy violation. Finally,
the court found the defendant's due process argument unavailing
in light of this court's ruling that no rational jury would have
acquitted the defendant. Griffith, 334 Ill. App. 3d at 119.
10 No. 1-09-1001
The defendant timely appeals the denial of his pretrial
motion to dismiss the indictment pursuant to Supreme Court Rule
604(f). 210 Ill. 2d R. 604(f).
ANALYSIS
The defendant acknowledges that in Illinois, no precedent
exists for applying the double jeopardy bar to circumstances
present in the case at bar. "No Illinois case has considered or
decided -- one way or the other -- the applicability of Double
Jeopardy and Due Process protections in the context of
intentional and systematic prosecutorial misconduct like that in
Mr. Griffith's case." To support his contention that retrial
should be barred under the Illinois Constitution's double
jeopardy clause, the defendant proposes we look to the more
expansive standards of other states under their respective
double jeopardy provisions. In the alternative, he contends
dismissal is warranted under the due process provisions of the
United States and Illinois Constitutions.
The State counters that the defendant's claims are not
novel under Illinois case law, which properly limits the remedy
for prosecutorial misconduct to a retrial unless the prosecution
intends and causes a mistrial. The State also contends the
defendant has no right to advance his due process argument where
the sole basis of his pretrial appeal is Supreme Court Rule
604(f) (210 Ill. 2d R. 604(f) ("Appeal by Defendant on Grounds
of Former Jeopardy")), which limits interlocutory appeals to
11 No. 1-09-1001
denials of claims of double jeopardy.
Standard of Review
Illinois Supreme Court Rule 341(h)(3) requires an appellant
include "a concise statement of the applicable standard of
review for each issue [raised]." 210 Ill. 2d R. 341(h)(3). If
the appellant fails to set forth the applicable standard of
review, the appellee must do so. 210 Ill. 2d R. 341(i). In
violation of Rule 341, neither party includes the applicable
standard of review on each issue raised. We determine the
standard of review without the input of the parties.
"Generally, abuse of discretion is the appropriate standard
for reviewing a trial court's ultimate ruling on a motion to
dismiss charges on double-jeopardy grounds." People v. Brener,
357 Ill. App. 3d 868, 870, 830 N.E.2d 692 (2005). This is true
where the court faces the factual question whether "the
prosecutor goaded defendant into moving for a mistrial." People
v. Campos, 349 Ill. App. 3d 172, 174, 812 N.E.2d 16 (2004). We
review the trial court's decision against the manifest weight of
the evidence where "the issue *** is the intent of the
prosecutor himself, which is a factual question that the trial
court is in the best position to determine." Campos, 349 Ill.
App. 3d at 175.
Here, the defendant does not argue that the prosecutor
intended to induce the defendant to move for a mistrial, though
her conduct triggered numerous unsuccessful requests for a
12 No. 1-09-1001
mistrial. Rather, the parties dispute the legal effect under
the Illinois Constitution's double jeopardy provision of the
"intentional, systematic, deceptive, and deplorable
prosecutorial misconduct," as stated by the defendant, during
his jury trial, a characterization consistent with that of the
federal and state courts in the published opinions of this case.
In reviewing the denial of a motion to dismiss on double
jeopardy grounds where "neither the facts nor the credibility of
witnesses is at issue, we address a purely legal question, and
our standard of review is de novo." In re Gilberto G.-P., 375
Ill. App. 3d 728, 730, 873 N.E.2d 534 (2007), citing Brener, 357
Ill. App. 3d at 870 (applying de novo review where the only
issue is whether the defendant's actions constituted a single
act precluding more than one prosecution for double jeopardy
purposes). Accordingly, we review de novo the circuit court's
dismissal of the defendant's double jeopardy claim.
Double Jeopardy Protection
The double jeopardy clause of the United States
Constitution provides: "No person shall *** be twice put in
jeopardy of life or limb ***." U.S. Const., amend. V. The
Illinois Constitution of 1970 contains a nearly identical
provision: "No person shall *** be twice put in jeopardy for the
same offense." Ill. Const. 1970, art. I, §10. Section 3-
4(a)(3) of the Criminal Code of 1961 codifies the constitutional
double jeopardy rules. 720 ILCS 5/3-4 (West 2004).
13 No. 1-09-1001
Though the defendant asserts his claim under both the United
States and Illinois Constitutions, he urges this court to broaden
the protection under the state double jeopardy clause as have the
highest courts of at least five states. This, we take, as an
implicit acknowledgment that the federal standard remains as
stated in Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102
S. Ct. 2083 (1982), which our supreme court has followed in its
rulings. "The Supreme Court in Kennedy, specifically rejecting a
more generalized standard of 'bad faith conduct' or 'harassment'
in judging whether a mistrial was provoked, held that the error
must disclose the prosecutor's intent to provoke a motion for a
mistrial. We followed this standard of intent in [People v.
Davis, 112 Ill. 2d 78, 86, 491 N.E.2d 1163 (1986)]." (Emphasis
in original.) People v. Ramirez, 114 Ill. 2d 125, 130, 500
N.E.2d 14 (1986).
To challenge the circuit court's ruling below, the defendant
first argues that just because no mistrial was declared, his
double jeopardy claim should not be foreclosed. See Sales, 357
Ill. App. 3d at 868 (no cognizable double jeopardy claim based on
the granting of a new trial because it is not the functional
equivalent of a mistrial). The logic of this argument has been
acknowledged by our supreme court:
"The argument may be made that the
reversal of a trial court's erroneous denial
of a motion for a mistrial, which the State
14 No. 1-09-1001
has intentionally provoked, deserves the same
preclusive effect as if the mistrial had been
declared in the first instance." Davis, 112
Ill. 2d at 86, citing Kennedy, 456 U.S. at
687 n.22, 72 L. Ed. 2d at 432 n.22, 102 S.
Ct. at 2095-96 n.22) (Stevens, J.,
concurring, joined by Brennan, Marshall, and
Blackmun, JJ.) (it is "irrational" to permit
retrial where the prosecution intended to
provoke a mistrial that the trial court
erroneously failed to declare), quoting
Commonwealth v. Potter, 478 Pa. 251, 282, 386
A.2d 918, 933 (1978).
See also United States v. Wallach, 979 F.2d 912, 916 (2d Cir.
1992) ("There is no justification for [the] distinction" between
a defendant who moves successfully for a mistrial and one whose
conviction is reversed on appeal); State v. Jorgenson, 198 Ariz.
390, 392, 10 P.3d 1177, 1179 (2000) ("Surely a defendant whose
mistrial motion was erroneously denied, as in the present case,
should have the same constitutional protection as one whose
motion was correctly granted ***").
The argument that a reviewing court's decision, that a
mistrial was erroneously denied, should have the same preclusive
effect was not resolved in Davis because the Davis defendant
never moved for a mistrial. Davis, 112 Ill. 2d at 86. The court
15 No. 1-09-1001
also noted "that the record contains nothing that would support
the inference that the prosecutor committed the errors in
question with the intent to provoke a motion for a mistrial."
Davis, 112 Ill. 2d at 86.
As a foundation for his double jeopardy claim, the defendant
before us does not reassert his argument from his direct appeal
that the prosecutorial misconduct "would have justified the trial
judge's declaring a mistrial" (Ramirez, 114 Ill. 2d at 129),
given that he moved repeatedly for a mistrial. In Ramirez, the
defendant then argued that had the trial judge declared a
mistrial based on the asserted errors, the nature of the errors
"were so egregious that it can be inferred that the prosecutor
intended to provoke a mistrial." Ramirez, 114 Ill. 2d at 130.
To support his contention that the asserted errors were
"egregious," the Ramirez defendant pointed to the supreme court's
observation "that the prosecutor had 'purposely' " committed one
of the asserted errors. Ramirez, 114 Ill. 2d at 131. The
supreme court in Ramirez did not reject this argument as contrary
to the federal double jeopardy standard requiring the declaration
of a mistrial, which the court in Davis had declared as the
Illinois standard under the limited lockstep doctrine. Rather,
the Ramirez court determined that the error found to be
reversible was not sufficiently egregious to give rise to an
inference that the prosecutor intended to provoke a mistrial:
"[T]he reference to the defendant's silence
16 No. 1-09-1001
***, which we held to be error, did not even
prompt a defense objection, much less a
motion for mistrial. 'In view of the failure
of both the defense counsel and the trial
judge to recognize immediately the need for a
mistrial, it is difficult to credit the
premise that the prosecutor could not have
committed such conduct without knowing and
intending that mistrial would result.' "
Ramirez, 114 Ill. 2d at 131, quoting United
States v. Curtis, 683 F.2d 769, 777 (3d Cir.
1982), cert. denied 459 U.S. 1018, 74 L. Ed.
2d 512, 103 S. Ct. 379 (1982).
Rather than follow the line of argument put forth by the
Ramirez defendant (as the argument is foreclosed by Tenner based
on our rejection of his mistrial argument on direct review), the
defendant before us argues that the reasoning underlying the
numerous out-of-state decisions broadening the protection under
the double jeopardy clause should apply to his claim based on
the egregious prosecutorial misconduct engaged in by the lead
prosecutor. He contends the intentional and systematic
misconduct undermined the very foundation of a fair trial, which
deprived the defendant of his right "to have the charges against
him decided by the first trier of fact," a principal aim behind
the double jeopardy protection. Ramirez, 114 Ill. 2d at 129;
17 No. 1-09-1001
Kennedy, 456 U.S. at 673, 72 L. Ed. 2d at 423, 102 S. Ct. at
2088 ("one of the principal threads making up the protection
embodied in the Double Jeopardy Clause is the right of the
defendant to have his trial completed before the first jury
empaneled to try him"). According to this argument, it should
not matter that the prosecutor that engages in egregious
misconduct had no intent to goad the defendant into seeking a
mistrial. "One of the most persuasive criticisms of the Kennedy
rule is that the subjective intentions of the prosecutor are
inherently unknowable." State v. Breit, 1996-NMSC-067, ¶23, 122
N.M. 655, 930 P.2d 792, citing Kennedy, 456 U.S. at 688, 72 L.
Ed. 2d at 432-33, 102 S. Ct. at 2096 (Stevens, J., concurring)
("It is almost inconceivable that a defendant could prove that
the prosecutor's deliberate misconduct was motivated by an
intent to provoke a mistrial instead of an intent simply to
prejudice the defendant"); see Commonwealth v. Smith, 532 Pa.
177, 180-81, 615 A.2d 321, 322 (1992), quoting Commonwealth v.
Simons, 514 Pa. 10, 23, 522 A.2d 537, 544 (1987) (Flaherty, J.
concurring) (" 'Quite the opposite [intent is involved], the
intent would be that the defendant should never know how his
wrongful conviction came about' ").
Notably, the parties agree that the prosecutor's intent
behind the numerous instances of misconduct was not to induce
the defendant to seek a mistrial. While we note the State's
assertion in a footnote that it "vigorously disagree[d]" with
18 No. 1-09-1001
the federal district court's decision and the decision of the
Illinois Attorney General's office not to appeal the ruling, the
State is no longer free to assert its disagreement over the
severity of its prosecutor's misconduct. People v. Tenner, 206
Ill. 2d 381, 396-97, 794 N.E.2d 238 (2002) (collateral estoppel
bars relitigation of an issue decided in a prior case, including
the defendant's federal habeas corpus proceedings).
In Smith, the Pennsylvania Supreme Court confronted the issue of "whether the double jeopardy clause bars retrial
following intentional prosecutorial misconduct designed to
secure a conviction through the concealment of exculpatory
evidence." Smith, 532 Pa. 177 at 179, 615 A.2d at 323. The
Pennsylvania Supreme Court determined that the circumstances in
Smith warranted a departure from the federal standard that
double jeopardy attaches only when a mistrial has been
intentionally caused by prosecutorial misconduct. "We now hold
that the double jeopardy clause of the Pennsylvania Constitution
prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial." Smith, 532 Pa. at 186, 615 A.2d
at 325.
We note that District Judge Bucklo ruled that the
misconduct engaged in by prosecutor Laura Morask pushed the
19 No. 1-09-1001
trial of the defendant in this case to the same point as in
Smith:
"The prosecution's dogged focus on the
improper theme of Mr. Griffith's 'propensity
to kill with a knife,' [citation], shaped the
course of the proceedings and permeated the
entire atmosphere of the trial. Such a
climate is inherently and fundamentally unfair. 'It is axiomatic in our system of
justice that an individual is entitled to a
fair trial-not a perfect one. Nevertheless,
the distance between the concepts of fair and
perfect cannot be so great as to render the
former meaningless.' " Griffith, 587 F.
Supp. 2d at 914, quoting United States v.
Mannie, 509 F.3d 851, 857 (7th Cir. 2007).
The defendant acknowledges that even if his double jeopardy
claim had been before the federal district court and Judge
Bucklo had been asked to bar the retrial of the defendant based
on her finding of a constitutionally unfair trial, retrial could
not be barred because the instant case does not fall under the
federal standard established by Kennedy as it cannot be
contested that the prosecutor's intent here was not to goad the
defendant into a seeking a mistrial. Kennedy, 456 U.S. at 676,
72 L. Ed. 2d at 425, 102 S. Ct. at 2089 ("Only where the
20 No. 1-09-1001
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 succeeded
in aborting the first on his own motion").
The defendant correctly notes that states are not bound by
the holding in Kennedy, quoting Justice Brennan's concurring
opinion: "[N]othing in the holding of the Court today prevents
the state courts *** from concluding that *** retrial would violate the provision of the [state] constitution that prohibits
double jeopardy ***." Kennedy, 456 U.S. at 680, L. Ed. 2d at
428, 102 S. Ct. at 2091 (Brennan, J., concurring, joined by
Marshall, J.). Taking their cue from Justice Brennan, other
state courts, including Oregon on remand from Kennedy, have
adopted broader rules governing the consequences of
prosecutorial misconduct under the state provision providing
double jeopardy protection. See State v. Kennedy, 295 Or. 260,
666 P.2d 1316 (1983); Pool v. Superior Court, 139 Ariz. 98, 677
P.2d 261 (1984); Smith, 532 Pa. 177, 615 A.2d 321; State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792; State v.
Rogan, 91 Haw. 405, 984 P.2d 1231 (1999). The defendant urges
Illinois to join these states.
Unlike the courts that issued the decisions cited by the
defendant, we are not the highest court of this state. See
People v. Artis, 232 Ill. 2d 156, 164, 902 N.E.2d 677 (2009)
("The appellate court lacks authority to overrule decisions of
21 No. 1-09-1001
this court, which are binding on all lower courts"). Only our
supreme court is free to veer away from the federal standard.
Compare People v. Pendleton, 75 Ill. App. 3d 580, 593, 394
N.E.2d 580 (1979) (retrial may be precluded for misconduct
"motivated by bad faith or undertaken to harass or prejudice the
accused"), with People v. Marchbanks, 125 Ill. App. 3d 796, 798-
99, 466 N.E.2d 668 (1984) (declining to apply the older
Pendleton standard and applying the stricter standard of Kennedy
instead).
As a lower court, we are limited to following established
case law from our supreme court, though we may find little
disagreement with the reasoning of the highest court in our
sister state in explaining its departure from the Kennedy
standard:
"We have stated that our State
Constitution's double-jeopardy provision 'is
subject to the same construction and
interpretation as its counterpart in the
Fifth Amendment to the United States
Constitution. [Citation.] That does not
mean, however, that we must embrace United
States Supreme Court precedent when it
changes a standard formerly adopted by this
Court. [Citation.] In [a case departing from
United States Supreme Court precedent,] we
22 No. 1-09-1001
stated that we will 'undertake independent
analysis of our state constitutional
guarantees when federal law begins to
encroach on the sanctity of those
guarantees.' [Citation.] ***
***
*** [W]hen this Court derives an
interpretation of New Mexico law from a
federal opinion, our decision remains the law
of New Mexico even if federal doctrine should
later change. [Citation.]" Breit, 1996-NMSC-
067, ¶¶25, 27, 122 N.M. 655, 930 P.2d 792.
Though the State argues that the absence of a mistrial
precludes a finding of a double jeopardy violation (citing
Sales), as we noted, our supreme court has observed that a case
may arise that warrants a departure from federal law under the
lockstep doctrine. See People v. Caballes, 221 Ill. 2d 282,
299, 851 N.E.2d 26 (2006) ("this court has, on occasion,
departed from strict lockstep interpretation when circumstances
warrant"). For the same reason that the erroneous denial of a
defendant's motion for a mistrial should not necessarily
preclude a review of the intent behind the prosecutorial
misconduct to trigger double jeopardy protection (Davis, 112
Ill. 2d at 86), the defendant argues that the inability of a
23 No. 1-09-1001
defendant to objectively demonstrate an intent to provoke a
mistrial behind egregious prosecutorial misconduct should not
foreclose the protection afforded by the double jeopardy clause
of the Illinois Constitution when egregious prosecutorial
misconduct deprives a defendant from obtaining a fair verdict
from "the first trier of fact." Ramirez, 114 Ill. 2d at 129.
The defendant contends the circumstances present in his case
warrant a departure from the federal standard because the "intentional and systematic misconduct of the prosecutor"
(Griffith, 334 Ill. App. 3d at 119), which "called into question
the State's commitment to fair and just enforcement of the law"
(Griffith, 334 Ill. App. 3d at 119), was so egregious that the
State should be barred from a second opportunity to convict the
defendant. Just as the circumstances present in each of the
decisions issued by the supreme courts of the five states
warranted a departure from the federal standard on double
jeopardy protection, which we cited above, he argues the
circumstances in his case warrant a similar departure by the courts of Illinois.
The State counters that "none of those broader
interpretations defendant cites, save two, would provide
defendant relief based on the facts of his case." The reasoning
behind the majority of the "broader interpretation" cases is
grounded in prosecutorial intent to engage in misconduct to avoid
an acquittal likely to occur absent the prosecutorial misconduct.
24 No. 1-09-1001
See Wallach, 979 F.2d at 916 ("If any extension of Kennedy beyond
the mistrial context is warranted, it would be a bar to retrial
only where the misconduct of the prosecutor is undertaken, not
simply to prevent an acquittal, but to prevent an acquittal that
the prosecutor believed at the time was likely to occur in the
absence of his misconduct").
The defendant replies that the broader double jeopardy
standard adopted by New Mexico, Arizona, and Oregon would, if applied, provide relief under the circumstances in his case. At
oral argument he urged that Illinois follow the three-prong
standard adopted by New Mexico: the double jeopardy bar applies
"when [1] improper official conduct is so unfairly prejudicial to
the defendant that it cannot be cured by means short of a
mistrial or motion for a new trial, and [2] if the official knows
that the conduct is improper and prejudicial, and [3] if the
official intends to provoke a mistrial or acts in willful
disregard of the resulting mistrial, retrial, or reversal."
Breit, 1996-NMSC-067, ¶32, 122 N.M. 655, 930 P.2d 792.
The State argued at oral argument that the expanded standard
based on the "denial of a fair trial" premised on misconduct
being so prejudicial as to cause a mistrial or new trial
improperly "conflates" interests protected by the due process
clause standard and the protection afforded by the double
jeopardy clause.
25 No. 1-09-1001
To explain the interests protected by the double jeopardy
clause, "[t]he words of Justice Black are often quoted." Breit,
1996-NMSC-067, ¶9, 122 N.M. 655, 930 P.2d 792.
" 'The underlying idea, one that is
deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the
State with all its resources and power should
not be allowed to make repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live
in a continuing state of anxiety and
insecurity, as well as enhancing the
possibility that even though innocent he may
be found guilty.' " Breit, 1996-NMSC-067,
¶9, 122 N.M. 655, 930 P.2d 792, quoting Green
v. United States, 355 U.S. 184, 187-88, 2 L.
Ed. 2d 199, 204, 78 S. Ct. 221, 223 (1957).
The difficulty this case presents is that while the
prosecutorial misconduct was "intentional and systematic," as we
characterized it on our review on direct appeal, we also
concluded that "no rational jury could have found the defendant
not guilty of felony murder." Griffith, 334 Ill. App. 3d at 119.
In considering the defendant's claim under the double jeopardy
clause, we cannot ignore that a new trial protects the
26 No. 1-09-1001
defendant's constitutional right to a fair trial at stake in this
case. See People v. Bull, 185 Ill. 2d 179, 214, 705 N.E.2d 824
(1998) ("A *** defendant, whether guilty or innocent, is entitled
to a fair, orderly, and impartial trial ***"). We cannot say
that under the unique circumstances in this case, any
embarrassment, expense, and ordeal imposed on the defendant in a
retrial is due to the vast resources and power of the State
rather than the overwhelming evidence of the defendant's guilt.
Nor can we say that the possibility exists that the defendant may
be innocent of felony murder, without meaning to suggest that he
cannot be found "not guilty" on retrial. See Green, 355 U.S. at
187-88, 2 L. Ed. 2d at 204, 78 S. Ct. at 223. In other words, we
fail to see the interests protected by the double jeopardy clause
at stake in this case.
At best, the rights of the defendant to be protected are his
due process rights to a fair trial, which a verdict, flowing from
a fair trial premised on the lawfully admissible evidence free
from any influence of prosecutorial misconduct, will vindicate. See People v. Blue, 189 Ill. 2d 99, 119-20, 724 N.E.2d 920 (2000)
(retrial ordered against claim that "conduct of State's
prosecutors *** was so improper and abusive that defendant was
denied a fair trial" raising doubt of the constitutionality of
the defendant's trial).
We are compelled to agree with the State. Regardless of the
persuasiveness of the authorities from other states for the
27 No. 1-09-1001
rejection of the federal standard in favor of an expanded
standard for double jeopardy protection, no cited case leads us
to conclude that the interests behind the double jeopardy clause
bar a retrial under the circumstances in the defendant's case,
even if this were a first-impression question for a second-tier
court to decide. See Wallach, 979 F.2d at 916 (defendant's case
does not fall under new double jeopardy standard urged by the
defendant).
The defendant's observation that "[a]n additional five other
states have left open the possibility of a broader standard until
presented with a case *** involving appropriate facts that could
potentially trigger the broader protections" adds little to his
argument that his case, in light of the "evidence at trial
overwhelmingly in favor of conviction" (Griffith, No. 1-03-0713,
slip op. at 7), presents a case for such consideration in
Illinois. See United States v. Doyle, 121 F.3d 1078, 1086 (7th
Cir. 1997) (" '[I]t is the right to appeal, not the double
jeopardy clause, that protects defendants from trial errors .... The double jeopardy clause serves not to punish prosecutorial
misconduct; it simply ensures that the defendant, not the
government, gets to choose whether to go to verdict' "), quoting
Beringer v. Sheahan, 934 F.2d 110, 113 (7th Cir. 1991). We are
unpersuaded that society's interest in punishing "one whose guilt
is clear" (United States v. Tateo, 377 U.S. 463, 466, 12 L. Ed.
2d 448, 451, 84 S. Ct. 1587, 1589 (1964)), based on lawfully
28 No. 1-09-1001
admitted evidence at trial, should be forfeited by the egregious
misconduct of a rogue prosecutor. Griffith, 334 Ill. App. 3d at
119 ("no rational jury could have found the defendant not guilty
of felony murder").
Under the current state of Illinois law, the only relief the
defendant can claim, even in the face of a clear showing of
egregious prosecutorial misconduct, is that which the federal
district court provided: a new trial. See Blue, 189 Ill. 2d at 139 ("regardless of the weight of the evidence, as guardians of
constitutional rights and the integrity of the criminal justice
system, we must order a new trial when, as here, we conclude the
defendant did not receive a fair trial" (where errors created a
pervasive pattern of unfair prejudice to defendant's case)).
Due Process
In the alternative, the defendant contends his case should
be dismissed on due process grounds. The basis for this
interlocutory appeal, however, is Supreme Court Rule 604(f). 210
Ill. 2d R. 604(f). The defendant concedes in his reply brief
"that Illinois Supreme Court Rule 604(f) limits the ground for an
interlocutory appeal to issues of Double Jeopardy." We cannot
accept the defendant's contention that the interest of judicial
economy, which forms the basis for his contention that we should
address this claim now, should trump express language in Supreme
Court Rule 604(f) that grants interlocutory review to only his
29 No. 1-09-1001
double jeopardy claim. See People ex rel. City of Chicago v.
Hollins, 368 Ill. App. 3d 934, 941, 859 N.E.2d 253 (2006) ("The
scope of review of an order in a Rule 604(f) appeal is limited to
a former jeopardy analysis ***").
CONCLUSION
The opinions of the various courts that have reviewed the
defendant's 1999 murder trial have amply demonstrated the
egregious misconduct engaged in by the lead prosecutor. We are
bound, however, by precedent of our supreme court that the
federal standard under Illinois caselaw requires the prosecutor's
intent behind her misconduct be to "goad" the defendant into
seeking a mistrial to trigger double jeopardy protection. As the
defendant concedes, no such intent can be objectively established
under the facts of this case. Under well-established precedent,
the double jeopardy clause under the Illinois Constitution does
not preclude the defendant's retrial. Nor is his due process
claim subject to review in this interlocutory appeal.
We affirm.
CAHILL and MCBRIDE, JJ., concur.
30 No. 1-09-1001
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT ________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVAN GRIFFITH, Defendant-Appellant. ________________________________________________________________ No. 1-09-1001
Appellate Court of Illinois First District, Sixth Division
Filed: September 30, 2010 _________________________________________________________________ JUSTICE GARCIA delivered the opinion of the court. CAHILL and McBRIDE, JJ., concur. _________________________________________________________________ Appeal from the Circuit Court of Cook County Honorable John J. Fleming, Judge Presiding _________________________________________________________________ For PLAINTIFF- Anita Alvarez APPELLEE State's Attorney, County of Cook Alan J. Spellberg Susan R. Schierl Sullivan Marci Jacobs Assistant State's Attorneys, Of Counsel Richard J. Daley Center, Room 309 Chicago, IL 60602
31 No. 1-09-1001
For DEFENDANT- Jeffrey D. Colman APPELLANT Justin A. Houppert Jenner & Block LLP 353 North Clark St. Chicago, IL 60654