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Nevada Supreme Court: Mistrial Due to Egregious and Improper Conduct by Prosecutor Bars Retrial

by Christopher Zoukis

The Nevada Supreme Court ruled on September 14, 2017 that double jeopardy bars retrial of a criminal defendant when a prosecutor intentionally engages in egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.

The case before the Court involved the prosecution of Lacy L. Thomas, the former CEO of University Medical Center (“UMC”) for several counts of theft and misconduct. The State asserted that Thomas had entered into contracts that favored companies owned by his friends and were grossly unfavorable to UMC. During a lengthy trial, the defense discovered that the prosecution had withheld a binder of exculpatory documents.

When Thomas learned of the withheld evidence, he moved for and was granted a mistrial. He then filed a motion to dismiss all charges pursuant to the Double Jeopardy Clause of the U.S. Constitution, which bars a state from putting a defendant in jeopardy twice for the same offense. The motion was denied, and Thomas petitioned the Nevada Supreme Court for extraordinary relief through a writ of mandamus. Such writs are rarely taken up by high courts, but the Nevada Supreme Court found this issue compelling and determined that the law required clarification.

As a general rule, double jeopardy rarely applies to situations involving a mistrial in a criminal case. This is doubly so when the defendant moves for a mistrial. However, the U.S. Supreme Court declared in Oregon v. Kennedy, 456 U.S. 667 (1982), that when a prosecutor “goads” the defendant into moving for a mistrial, double jeopardy may apply if the prosecutor acted with the intent to cause a mistrial. Nevada adopted this standard in Melchor-Gloria v. State, 660 P.2d 109 (Nev. 1983).

The Nevada Supreme Court noted the near impossibility of proving a prosecutor’s specific intent to cause a mistrial and declared a new standard in Nevada. Double jeopardy applies, held the court, when “a prosecutor intentionally proceeds in a course of egregious and improper conduct that causes prejudice to the defendant which cannot be cured by means short of a mistrial.”

Turning to the case at hand, the Court determined that the prosecution intentionally withheld the exculpatory documents. Looking at the record, the Court specifically found that the prosecutor had the documents, knew they were important, knew they were exculpatory, and intentionally withheld them. Furthermore, the Court found inconsistencies in testimony by Deputy District Attorney Scott Mitchell that seemed to demonstrate that he lied about the documents. Finding that no remedy other than barring further prosecution could remedy this conduct, the Nevada Supreme Court ruled that double jeopardy applied.

“All evidence before the district court in this case suggests that the prosecutor intentionally and improperly withheld exculpatory documents,” wrote the Court. “This conduct was egregious, and caused prejudice to Thomas which could not be cured by means short of a mistrial. Therefore, double jeopardy bars reprosecution of Thomas on all counts.” See: Thomas v. Eighth Judicial District Court of Nevada, 133 Nev. Adv. Rep. 63 (2017).  

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