THORNBERRY, Circuit Judge:
This is a double jeopardy case. Defendants were tried in district court on a fifteen count indictment alleging various firearms related offenses.1 After the jury had been sworn and the government had presented its case, the trial judge declared a mistrial. The defendants then filed pleas of former jeopardy alleging that the declaration of mistrial was sua sponte and not supported by “manifest necessity”. United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).2 The district judge denied the [1314]*1314motions, declaring that the mistrial was granted in response to the defendants’ motions for mistrial made during the trial and not made sua sponte. The defendants took a direct appeal from this ruling. A panel of this court relying on United States v. Bailey, 512 F.2d 833 (5 Cir. 1975), dismissed the direct appeal for lack of finality under 28 U.S.C. § 1291. In the meantime, the Supreme Court in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) decided that appeals such as the present appeal are final judgments within the meaning of 28 U.S.C. § 1291. The Supreme Court applying Abney has directed this court to reach the merits of the present case. Crouch v. United States, 432 U.S. 903, 97 S.Ct. 2945, 53 L.Ed.2d 1075 (1977).
I.
The events at the defendants’ trial as described by the trial judge in his memorandum opinion are as follows:
Three motions for mistrial were made during the course of the trial. The first occurred on the morning of February 19, 1976, during the testimony of Fred Beck, a former employee of defendant Crouch. Before Beck was called, Crouch’s counsel approached the bench to state that the prosecution had agreed that evidence relating to a different case filed in the Houston Division of this District would not be entered into evidence. The prosecutor did not expressly confirm or deny this statement. The Court did not approve or disapprove the agreement, stating merely that it would see how the case developed. Beck testified that after he had left Crouch’s employment he discovered that Crouch wished to “get rid of him”, and that, as a result, he sought protection from the Bureau of Alcohol, Tobacco and Firearms, which was investigating the case. When asked by the prosecutor whether he was given money by the ATF as a result of seeking their protection, Crouch’s attorney objected on the ground that the question was leading and suggestive. The Court sustained the objection and directed the prosecutor to ask the witness only what was said. When the prosecutor asked how the information came to him, the witness replied that ATF agents allowed him to listen to a tape recording of someone conversing with Crouch. Thus, in substance, Beck testified that he learned that Crouch wanted to kill him by listening to a tape of a conversation between Crouch and a third party that was played for him by federal agents.
The jury was excused, and Crouch’s counsel objected on three grounds: (1) that the statement was hearsay; (2) that the recording was obtained in violation of Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246] (1964); and (3) that the elicitation of the statement violated the agreement between counsel because the tape recording pertained solely to the Houston case. Accordingly, Crouch’s counsel moved in the alternative to strike and for the declaration of a mistrial. Counsel for appellant Kudelka adopted the motion for mistrial. The court, after a lengthy inquiry, granted the motion to strike, but denied the motion for mistrial. The jury was recalled and Crouch’s counsel reurged both his motion to strike and for mistrial in their presence. The Court again denied the [1315]*1315motion for mistrial, struck the question and Beck’s answer from the record and instructed the jury not to consider them for any purpose.
The second and third motions for mistrial occurred during the direct examination of Special Agent Michael Taylor, the ATF agent in charge of the investigation. Taylor testified that he arrested defendant Kudelka in August 1974, advised him of his constitutional rights, and had a conversation with him. Taylor then stated that he had asked Kudelka whether he would make a statement. The prosecutor asked what Kudelka’s response was, and Taylor answered that Kudelka had said that he had an agreement with Croch whereby he, Kudelka, would “stick to his story” and that in return Crouch would take care of him, pay all of his legal fees, and see that he wound up owning the pawn shop in Galveston. For that reason, Taylor stated that Kudelka chose not to make any further statement. Out of the presence of the jury, Crouch’s counsel stated that he was surprised by Agent Taylor’s testimony because the government had represented that it had tendered to defendants all statements made by them while they were in custody. The Court ruled that the statement would be stricken as the government had a duty to disclose and had failed to do so. Counsel for both defendants then moved for a mistrial on the ground that the statement was so highly prejudicial that no instruction would remove its impact from the minds of the jury. The Court overruled both motions. Although the Court struck Taylor’s testimony as to the agreement and directed the jury to disregard it, Crouch’s counsel subsequently cross-examined Taylor with respect to it and expressly withdrew his objection. Kudel-ka’s counsel, however, did not withdraw his objection.3 . .
As the direct examination of Taylor continued, the prosecutor questioned him about the arrest of defendant Crouch. Taylor stated that he had arrested Crouch in November of 1973 and had told him why he was being arrested and of his constitutional rights. The prosecutor then asked whether Crouch made any statement and Taylor replied that he did not. For the third time, Crouch’s counsel moved for a mistrial on the ground that the government had impermissibly shown that defendant Crouch exercised his Fifth Amendment right to remain silent. Counsel did not move to strike, and the Court denied the motion for mistrial.
On Tuesday, February 24, the trial judge held an in-chambers hearing in which he announced his intention of granting a two-week adjournment because of personal reasons. He subsequently stated in open court that the case would be continued until March 9. However, on March 8 the trial judge declared a mistrial, the defendants immediately objected, and the judge held another in-chambers conferencé.4 The judge denied defendants’ plea of former jeopardy on April 20 and issued a memorandum opinion a week later.
II.
The starting point in our analysis is the fundamental disagreement between the defendants and the trial judge concerning the reason for the declaration of mistrial. The defendants strenuously insist that the trial judge aborted the trial for personal reasons and later used the mistrial motions made at trial as an excuse for the declaration of mistrial. The defendants point to [1316]*1316the action of the trial judge in adjourning the trial for admittedly personal reasons.5 The defendants then ask this court to make the inference that the subsequent declaration of mistrial was also made for personal reasons. The trial judge in his memorandum opinion stated that the mistrial was granted pursuant to the defendants’ requests. We hold that the trial judge’s statement of his motivation in granting the mistrial is dispositive on the issue.
Just as courts will not review the motives of a legislature in enacting a law, Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), this court will not re view the mental processes of a trial judge. A judge’s statement of his mental processes is absolutely unreviewable. This court has no means of observing mental process. In United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941), Mr. Justice Frankfurter stated the rule we follow today. “We have explicitly held in this very litigation that ‘it was not the function of the court to probe the mental processes of the Secretary’ [of Agriculture]. [Morgan v. U. S.] 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938). Just as a judge cannot be subjected to such a scrutiny, . so the integrity of the administrative process must be equally respected.” Cf. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The trial judge’s statement of his mental process is so impervious to attack that even if he were to come forward today and declare that his memorandum misstated his reasons for the mistrial, we could not consider his explanation. Fayerweather v. Ritch, 195 U.S. 276, 305, 25 S.Ct. 58, 49 L.Ed. 193 (1904). See also Hassenflu v. Pyke, 491 F.2d 1094-95 (5 Cir. 1974), “It is inappropriate ... to base an appellate opinion on assertions de-hors the record.”
A similar claim was made by the defendant in United States v. Pappas, 445 F.2d 1194 (3 Cir.), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 10 L.Ed.2d 368 (1971). In Pappas defense counsel made a mistrial motion which the trial judge denied. The next day the trial judge stated that after reflection he decided to abort the trial for the reasons urged by the defendant. The defendant urged, as defendants Crouch and Kudelka contend here, that the mistrial was not granted in response to the motion for mistrial but was in fact granted sua sponte. The Third Circuit denied this claim stating:
Here, however, the record compels the conclusion that the trial judge declared a mistrial solely in response to the defendant’s request, although a day after the request had been made, and that the [defendant’s] interest was the exclusive motivation underlying the declaration of a mistrial. Accordingly, a second trial of [the defendant] was not barred by the double jeopardy clause.
Id. at 1200.
III.
The question then arises whether consistently with the double jeopardy provisions of the fifth amendment the defendants may be tried again following the granting of their motions for mistrial. We hold, as many others courts have held,6 that [1317]*1317the defendants may be retried unless the mistrial motion was prompted by error “motivated by bad faith or undertaken to harass or prejudice.” United States v. Din-itz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In Lee v. United States, 432 U.S. 23, 32, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80, 88-89 (1977) the Court explicitly recognized that a defendant’s motion for mistrial ordinarily removes any bar to retrial:
Writing for the Court [in United States v. Dinitz, supra], Mr. Justice Stewart reiterated the rule that “where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to repros-ecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.
Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial the Double Jeopardy Clause generally would not stand in the way of reprosecution. Only if the underlying error was “motivated by bad faith or undertaken to harass or prejudice,” id., 424 U.S. 611, 96 S.Ct. 1075, 47 L.Ed.2d 267, would there be any barrier to retrial[.] '
IV.
We must now decide if the present case is an “ordinary” one contemplated by the cases cited above or if this case is one in which the mistrial motion was forced upon the defendants by prosecutorial overreaching7 “motivated by bad faith or undertaken to harass or prejudice.” The prosecutor may not act in bad faith in creating errors that prompt a defendant’s motion for mistrial; otherwise once a prosecutor sees that his ease is going badly, he could force a mistrial and have another chance at convicting the defendant. This would circumvent the purpose of the double jeopardy clause.8
The leading case for this proposition in this circuit is United States v. Kessler, 530 F.2d 1246, 1256 (5 Cir. 1976):
Thus, a stringent analysis of the prosecutor’s conduct, considering the totality of the circumstances prior to the mistrial, to determine if there was “prosecutorial overreaching” is our inquiry. If “prose-cutorial overreaching” is found, a second trial is barred by the Double Jeopardy Clause notwithstanding the fact that the defendants requested the mistrial.
To find “prosecutorial overreaching”, the Government must have, through “gross negligence or intentional misconduct,” caused aggravated circumstances to develop which “seriously prejudicefd] a defendant” causing him to “reasonably conclude that a continuation of the tainted proceeding would result in a conviction.” United States v. Dinitz, supra, 424 U.S. at 688, 96 S.Ct. at 1080, 47 L.Ed.2d at 274. [footnote omitted].
[1318]*1318The trial judge in his memorandum opinion states that the mistrial motions were not forced upon the defendants by prosecutorial misconduct. Our review of this finding is limited by the provision of Fed.R.Civ.P. 52(a) which provides that “findings of fact shall not be set aside unless clearly erroneous.” McNeal v. Hollowell, 481 F.2d 1145, 1151 (5 Cir. 1973); United States v. Goldstein, 479 F.2d 1061, 1067 (2 Cir. 1973); United States v. Wilson, 534 F.2d 76, 82 (6 Cir. 1976).
We note that a finding of prosecutorial misconduct requires that the misconduct must have been a result of gross negligence 9 or intentional misconduct. In Kessler, we found misconduct arising from the introduction into evidence by the government of a known false exhibit. We characterized the introduction as intentional misconduct. In another case arising in a district court in this circuit, the district judge found that a government prosecutor invited a mistrial by asking a question which she had specifically agreed not to ask. The trial judge ruled that asking the question in violation of her agreement which had been ratified by the trial judge amounted to intentional misconduct. United States v. Broderick, 425 F.Supp. 93 (S.D.Fla.1977).
We now turn to the facts of the present appeal. Clearly, the error that precipitated the first mistrial motion is the most serious. During the testimony of Fred Beck, a former employee of defendant Crouch, the following transpired:
Q [by the prosecutor]. Okay. Now, I believe you say you left Mr. Crouch’s employment around October of ’73.
A Yes, sir.
Q And why did you leave his employment? Did you quit, or were you fired?
A Would you ask the question again, please sir? The first part?
Q What caused you to leave the employment of Mr. Crouch?
A I was aware of all these—
Q No. Excuse me. I am only concerned if there was some disagreement arose and you got fired and/or did you quit, rather than the details.
A Mr. Crouch, when he returned from a trip, told me he couldn’t use me. He said he couldn’t use me, and I said, “Why?” And he said, “I can’t use you anymore.”
And I said, “What do you mean, you fire me?” And he said, “Yes, something like that.” ■
And I said, “Well, I quit. You are not firing me.”
And he said, “Are you going to stay and work the rest of the day?” And I said, “Of course not. I’m leaving right now,” and packed the rest of my stuff and left.
Q After you had left the employment of Mr. Crouch, had it come to your attention that Mr. Crouch might be desirous of getting rid of you, so to speak?
A Yes, sir.
Q And as a result of that information, did you seek protection from the AT&F agency?
A Yes, sir.
Q And as a result of your seeking that protection, were you given or paid certain moneys to move your location?
A Yes, sir.
Mr. DeGUERIN: [Defense attorney]. If Your Honor please, this is leading and suggestive of the answer desired, and I object to it.
[1319]*1319THE COURT: Mr. Walker, it is. Just ask him what was said, please. Sustained.
Mr. WALKER: [Prosecutor]. Thank you, Your Honor.
Q (By Mr. Walker). How did this information come to you?
A The Alcohol, Tobacco and Firearms agents allowed me to listen to a tape recording of someone having a conversation with Mr. Crouch—
Mr. DeGUERIN: Excuse me, Your Hon- or. We have a Motion for the Court out of the presence of the Jury.
First, the defendants claim that the testimony concerning the taped murder threat was hearsay and a violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).10 While it is unnecessary to decide we will assume that the testimony concerning the recording was a violation of Massiah. If this were a direct appeal from a conviction, we note that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656 (1969), would allow a remand for a new trial even if the testimony were a violation of Massiah. Absent some evil motive on the part of the government, we find it incongruous to allow the defendants to go free as a result of their mistrial motions when the most they could get as a result of a reversal in a direct appeal is a retrial. It appears from the record that the government’s attorney wanted to demonstrate that Beck’s testimony was not tainted by improper government payments and that Beck had a basis for believing that his life was in danger. It was only after Crouch’s attorney objected to the form of the question did the government’s attorney ask the imprecise question that precipitated the objected to testimony.11 A review of the cases discussing misconduct on the part of the prosecutor, reveals the following: In United States v. Romano, 482 F.2d 1183 (5 Cir. 1973), cert. denied sub nom., Yassen v. United States, 414 U.S. 1129, 94 S.Ct. 866, 38 L.Ed.2d 753 (1974), the prosecutor made an inadvertent prejudicial comment during opening argument which resulted in a mistrial. We found that since the comment was inadvertent there was not prosecutorial misconduct. In United States v. Henderson, 142 U.S.App.D.C. 21, 439 F.2d 531 (1970), the prosecutor announced at opening argument that he was calling the defendant’s mother as a witness; when the prosecutor failed to call the proposed witness, the defendant’s mistrial motion was granted. The District of Columbia Circuit found no misconduct. In United States ex rel. Montgomery v. Brierley, 414 F.2d 552 (3 Cir. 1969), the prosecutor in his summation to the jury called the defendant a “pro” and an “old pro”. The Third Circuit found that a mistrial resulting from the defendant's objection to these prejudicial comments did not result from prosecutorial overreaching. Like the above mentioned cases, we find that the prosecutor’s question was not a deliberate attempt to vex or harass, but was mere inadvertence on his part, brought on by a large extent by defendants’ objection and the trial judge’s attempt to have his question clarified.
[1320]*1320Next the defendants contend that the testimony was in breach of an agreement not to bring out any testimony concerning a once pending Houston case. A district court in this circuit in United States v. Broderick, supra, has held the breach of an agreement amounted to misconduct. We do not think the conduct in the instant case rises to this level. First, unlike Broderick there is a genuine disagreement as to the existence of the agreement. Second, the trial judge in Broderick ratified the agreement; in the present case the judge explicitly refused to enforce any agreement. And finally, we think that even if there were a ratified agreement, its breach was inadvertent, unlike the agreement in Broderick which was deliberately violated.
The second motion for mistrial occurred during the testimony of special agent Taylor of the Alcohol, Tobacco and Firearms Bureau. Agent Taylor testified that defendant Kudelka had said that he had an agreement with defendant Crouch whereby Kudelka would stick to his story and Crouch would pay the legal fees and see to it that Kudelka would get a pawn shop in Galveston. Crouch’s attorney contends that the elicited testimony was in violation of a pretrial discovery order. The government attorney stated after the defense counsel had voiced his objection, “The witness surprised me. That’s all I know.” Certainly, if the agent’s testimony surprised the government attorney, it cannot be said that the attorney was guilty of intentional misconduct.12
The appellants’ third motion for mistrial was made after agent Taylor testified that when Crouch was asked to make a statement he did not do so. Appellants’ contention is that the mere asking of a question that allowed Taylor to so testify is misconduct. This puts things a little high. We are not prepared to hold that the mere asking of a question, in the absence of a specific agreement not to, would ever insulate a defendant from prosecution. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); United States v. Impson, 535 F.2d 286 (5 Cir. 1976); Walker v. United States, 404 F.2d 900 (5 Cir. 1968); Ivey v. United States, 344 F.2d 770 (5 Cir. 1965). We think that it takes more than a single question to vitiate the government’s ability to try these defendants on these very serious charges. After a review of the three mistrial motions made by the defendants, we are of the opinion that the trial court’s decision that the motions were not brought on by prosecutorial overreaching is not clearly erroneous.
In United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964), Mr. Justice Harlan stated:
Corresponding to the right of an accused to be given a fair trial is in the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a [1321]*1321conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.
By analogy, we find many of the same notions are true in the context of finding prosecutorial misconduct. If the courts are too quick in finding prosecutorial misconduct the inevitable result would be that trial judges would simply stop granting mo-, tions for mistrial. There are valid reasons in our system why we allow a trial judge to abort an erroneous trial and yet not forfeit the government’s right to try a lawbreaker. We wish not to disturb the practice of declaring mistrials when they are merited.
V.
Finally, defendants Crouch and Kudelka ask this court to write a rule requiring the district court to give the defendants an opportunity to state on the record whether they desire to stand on their motions previously made, or to continue the trial to conclusion. In the circumstances of this case, such a course of conduct obviously would have been the better practice. We decline, however, to write this as the general rule. In United States v. Goldstein, 479 F.2d 1061 (2 Cir. 1973) the defendant had made a motion for mistrial while the jury was deliberating. Two hours later the trial judge granted a mistrial and the defendants claimed that they never had an effective chance to withdraw their motion for mistrial. The Second Circuit disagreed and held that Goldstein could have easily made his position clear to the judge. Similarly, defendants Crouch and Kudelka had ample opportunity during the course of the trial to withdraw their motions for mistrial. Furthermore, the defendants could have made their position known to the trial judge either during the conference of February 24 or at any time during the two week adjournment. In these circumstances it is the responsibility of the defendants to make known to the trial judge any change in their position regarding the mistrial motions.
After a review of' this record and the arguments of the defendants, we are not prepared to hold that the Double Jeopardy Clause of the Fifth Amendment bars retrial of these defendants. Since the defendants made at least two mistrial motions and the motions were not forced upon the defendants by prosecutorial misconduct, we find that the fifth amendment is no bar to retrial. We express no opinion regarding the result were the mistrial granted sua sponte.
Accordingly, the judgment of the district court is AFFIRMED.