LACY L. THOMAS, Petitioner,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MICHAEL VILLANI, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.
petition for extraordinary relief challenging a district
court order denying a motion to dismiss an indictment, or
alternatively, to order the district court to rule upon
petitioner's motion to dismiss the indictment as
Office of Franny Forsman and Franny A. Forsman; Daniel J.
Albregts, Ltd., and Daniel J. Albregts, Las Vegas, for
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy
District Attorney, and Michael V. Staudaher and Ofelia L.
Monje, Deputy District Attorneys, Clark County, for Real
Party in Interest.
THE COURT EN BANC.
Oregon v. Kennedy, 456 U.S. 667 (1982), the United
States Supreme Court held that when a mistrial is declared at
a defendant's request, the Double Jeopardy Clause of the
United States Constitution bars reprosecution only in those
instances where a defendant demonstrates that the prosecutor
intentionally acted to "goad" the defendant to move
for a mistrial. Nevada adopted the Kennedy standard
in Melchor-Gloria v. State, 99 Nev. 174, 660 P.2d
years following Kennedy, a number of states have
observed the difficulty of proving a prosecutor's
specific intent to provoke a mistrial, and adopted broader
standards. Having reviewed these decisions, this court agrees
that the Kennedy standard is unduly narrow.
Therefore, the court concludes that pursuant to the
protections of Article 1, Section 8 of the Nevada
Constitution, when a defendant requests a mistrial, jeopardy
will also attach 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.
AND PROCEDURAL HISTORY
2008, the State of Nevada filed an indictment against Lacy L.
Thomas, the former chief executive officer of University
Medical Center (UMC), charging five counts of theft and five
counts of official misconduct. The charges related to
contracts entered into between Thomas and five separate
entities, which the State asserts were controlled by friends
or associates of Thomas. The State contended that the terms
of the five contracts were so grossly unfavorable to UMC that
each contract represented an act of theft. One of these theft
charges related to a contract negotiated by Thomas with
Superior Consulting (ACS).
initially proceeded to trial in 2010. On approximately the
fifth day of trial, an attorney for ACS, in a conversation
with Thomas's attorneys outside of court, referred to a
binder of documents that he believed to be exculpatory with
respect to ACS. ACS's attorney indicated he had
previously provided these documents to the police detectives
investigating ACS and Thomas. These documents had never been
provided to Thomas.
basis of this late disclosure, Thomas moved for a mistrial.
The district court granted the motion on the tenth day of
trial. After a cursory review, the district court found that,
at a minimum, the documents provided substantial material
relevant to the cross-examination of several key witnesses.
Given that 13 witnesses had already testified over nine days
of trial, the district court determined that a mistrial was
the mistrial, Thomas filed a motion to dismiss pursuant to
the Double Jeopardy Clause, and a motion to dismiss the
indictment for vagueness and failure to state a claim with
sufficient specificity. The district court granted the second
motion with respect to all counts, finding that the State had
failed to identify its allegations against Thomas with
sufficient specificity. The district court did not rule on
Thomas's claims that the underlying statutes were
unconstitutionally vague. On appeal, this court upheld the
dismissal of the theft charges related to ACS, but found that
the indictment provided Thomas with sufficient notice of the
remaining charges. State v. Thomas, Docket No, 58833
(Order Affirming in Part, Reversing in Part and Remanding,
Sept. 26, 2013).
remand to the district court, Thomas renewed his motion to
dismiss for double jeopardy. He also filed a renewed motion
regarding vagueness, arguing that the district court had not
reached these claims in its prior order.
an evidentiary hearing, the district court made a conclusive
finding that the documents at issue were exculpatory in
nature, as they tended to demonstrate that ACS had performed
work pursuant to its contract with UMC. The district court
also found that the documents had been provided to the
district attorney's office by police detectives.
Nonetheless, the court denied Thomas's double jeopardy
motion, finding that the State had not intentionally withheld
the documents from Thomas. The district court further noted
that the documents withheld related to conduct by ACS.
Because the theft charge was dismissed with respect to ACS,
the district court determined that there was no
"carryover" of double jeopardy to any remaining
counts. The district court concluded that it lacked authority
to consider Thomas's vagueness motion, as the parties had
argued the issue of constitutional vagueness in the first
appeal to this court.
now petitions for extraordinary relief, asking this court to
consider (1) whether double jeopardy bars reprosecution, (2)
whether double jeopardy has attached to all charged counts,
and (3) whether the district court had authority to rule on
his renewed motion to dismiss for unconstitutional vagueness.
exercise our discretion to consider Thomas's
decision to consider a writ of mandamus lies within the sole
discretion of this court. Smith v. Eighth Judicial Dist
Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
"A writ of mandamus is available to compel the
performance of an act that the law requires ... or to control
an arbitrary or capricious exercise of discretion, "
Int'l Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); NRS
34.160. "An arbitrary or capricious exercise of
discretion is one founded on prejudice or preference rather
than on reason, or contrary to the evidence or established
rules of law." State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780
(2011) (internal quotation marks omitted) (citation omitted),
"[W]here there is [no] plain, speedy and adequate remedy
in the ordinary course of law, " extraordinary relief
may be available. NRS 34.170; Smith, 107 Nev. at
677, 818 P.2d at 851. "While an appeal generally
constitutes an adequate and speedy remedy precluding writ
relief, we have, nonetheless, exercised our discretion to
intervene 'under circumstances of urgency or strong
necessity, or when an important issue of law needs
clarification and sound judicial economy and administration
favor the granting of the petition."' Cote H. v.
Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d
906, 908 (2008) (quoting State v. Second Judicial Dist.
Court (Ducharm), 118 Nev. 609, 614, 55 P.3d 420, 423
double jeopardy issues presented by this case are important
issues of law that require clarification. Further, given
Thomas's argument that double jeopardy bars
reprosecution, sound judicial economy supports consideration
of these issues before a second jury trial. Therefore, we
exercise our discretion to intervene in these circumstances
by way of extraordinary writ.
jeopardy applies in this case
first argues that his renewed prosecution by the State
following the initial mistrial violates the Double Jeopardy
Clause of the United States and Nevada Constitutions. This
presents a question of law that this court reviews de novo.
Grupo Famsa v. Eighth Judicial Dist. Court, 132
Nev., Adv. Op, 29, 371 P.3d 1048, 1050 (2016). However, this
court "will not disturb [the] district court's
findings of fact unless th[ose] [findings] are clearly
erroneous and not based on substantial evidence."
All Star Bail Bonds, Inc. v. Eighth Judicial Dist,
Court, 130 Nev., Adv. Op. 45, 326 P.3d 1107, 1109 (2014)
(internal quotation marks omitted).
a state may not put a defendant in jeopardy twice for the
same offense. U.S. Const, amend. V; Nev. Const, art. 1,
§ 8. As observed by the United States Supreme Court, a
fundamental purpose of the bar against double jeopardy is to
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
Green v. United States, 355 U.S. 184, 187-88 (1957)
Given the purpose of protecting against potential abuses by
the state, in analyzing whether double jeopardy bars
reprosecution after mistrial, "both the United States
Supreme Court and this court have made a distinction between
those cases in which the prosecution moves for mistrial and
those in which the defense moves for mistrial" Taylor v
State, 109 Nev 849, 861, 858 P.2d 843, 851 (1993) (Shearing,
J, concurring in part and dissenting in part); see also
Rudin v. State, 120 Nev. 121, 142-43, 86 P.3d 572, 586
jeopardy following the State's request for mistrial
cases where a mistrial is declared at the request of the
prosecutor, the concern that the state may pursue a mistrial
for its own advantage is strong. Therefore, in these
instances, a court must examine (1) whether the declaration
of a mistrial was dictated by "manifest necessity,
" and (2) "in the presence of manifest necessity,
whether the prosecutor is responsible for the circumstances
which necessitated declaration of a mistrial."
Hylton v. Second Judicial Dist. Court, 103 Nev. 418,
422-23, 743 P.2d 622, 625 (1987); see also Illinois v.
Somerville, 410 U.S. 458, 463 (1973) (discussing the
"manifest necessity" standard). The state may retry
a defendant only after establishing both manifest necessity,
and that the prosecutor was not "in some way
responsible" for the mistrial. Hylton, 103 Nev.
at 424, 743 P.2d at 626 (internal quotation marks omitted).
Jeopardy following a defendant's request for
a defendant's motion for, or consent to, a mistrial
generally removes any double jeopardy bar to reprosecution.
Oregon v. Kennedy, 456 U.S. 667, 672 (1982). As
noted by the United States Supreme Court in Kennedy,
when "the defendant himself has elected to terminate the
proceedings against him, the 'manifest necessity'
standard has no place in the application of the Double
Jeopardy Clause, " Id. Nonetheless, the Court
delineated a narrow exception, holding that in those
circumstances where the prosecutor intentionally provokes or
"goad[s]" the defendant into moving for a mistrial,
a defendant may raise double jeopardy as a defense to
subsequent reprosecution. Id. at 673-74.
court adopted the Kennedy standard in
Melchor-Gloria v. State, determining that to bar
reprosecution under the Double Jeopardy Clause, a defendant
must demonstrate intent by the state to provoke a mistrial.
99 Nev. 174, 178, 660 P.2d 109, 112 (1983). In that case, the
court noted that "prosecutorial conduct that might be
viewed as harassment or overreaching, even if sufficient to
justify a mistrial on defendant's motion, does not bar
retrial absent intent on the part of the prosecutor to
subvert the protections afforded by the Double Jeopardy
Clause." Id. This court again applied the
Kennedy standard in Collier v. State,
concluding that even though the prosecutor's remarks
leading to mistrial were "egregious, " double
jeopardy did not bar reprosecution because the defendant
failed to prove that "the prosecution was disposed to
seek a mistrial for its advantage." 103 Nev. 563, 566,
747 P.2d 225, 227 (1987).
of the Kennedy standard
observed by Justice Stevens in his concurring opinion in
Kennedy, "[i]t 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."
456 U.S. at 688 (Stevens, J., concurring). Further, by
limiting the protections of the Double Jeopardy Clause to the
narrow circumstances delineated in Kennedy, the
purposes of double jeopardy protection are not fully
realized. The New Mexico Supreme Court noted that "[t]he
object of constitutional double-jeopardy protections is not
to punish disreputable prosecutors. The purpose, rather, is
to protect the defendant's interests in having the
prosecution completed by the original tribunal before whom
the trial was commenced." State v. Breit, 930
P.2d 792, 800 (N.M. 1996). Notably, whether dismissal results
from goading or other intentional misconduct, "the
burden of a second trial is not attributable to the
defendant's preference for a new trial over completing
trial infected by an error. Rather, it results from the
state's readiness, though perhaps not calculated intent,
to force the defendant to such a choice." State v.
Kennedy, 666 P.2d 1316, 1326 (Or. 1983).
similar concerns, a number of courts have noted the
difficulty in proving a prosecutor's specific intent to
provoke a mistrial, and adopted approaches pursuant to their
respective state constitutions that encompass other
intentional or willful prosecutorial misconduct. See,
e.g., People v. Batts, 68 P.3d 357, 360 (Cal. 2003)
(observing that the Kennedy standard "has been
widely viewed as unduly narrow and as not fully protective of
the interest that the [D]ouble [J]eopardy [C]lause was
intended to safeguard"); Breit, 930 P.2d at 803
(holding that double jeopardy attaches when an official
intends to provoke a mistrial, or acts in "willful
disregard" of the possibility of a mistrial); State
v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983) (extending
double jeopardy protections to instances where the prosecutor
"either intends or is indifferent to the resulting
mistrial or reversal"); Commonwealth v. Smith,
615 A.2d 321, 325 (Pa. 1992) (concluding that in addition to
the goading discussed in Kennedy, double jeopardy
also prohibits retrial "when the conduct of the
prosecutor is intentionally undertaken to prejudice the
defendant to the point of the denial of a fair trial");
see also State v. Rogan, 984 P.2d 1231, 1249 (Haw.
1999). Indeed, the only state to have attempted
adoption of a broader double jeopardy standard and then
reversed its approach is Texas. See Bauder v. Texas,
921 S.W.2d 696, 699 (Tex. Crim. App. 1996), overruled by
Ex parte Lewis, 219 S.W.3d 335, 337 (Tex. Crim. App.
2007). We have reviewed the unique circumstances attendant to
the Bauder and Lewis line of cases and find
this authority unpersuasive.
difficulties inherent in the Kennedy standard are
discussed at length in Pool v. Superior Court, where
the Arizona Supreme Court noted that under Kennedy,
proving specific intent to provoke mistrial "must
necessarily involve a subjective inquiry and is too difficult
to determine." 677 P.2d 261, 271 (Ariz. 1984).
Therefore, in addition to those instances where a prosecutor
intentionally attempts to "goad" a defendant into
moving for a mistrial, the court further concluded that
double jeopardy would attach in those instances where the
guarantees of Arizona's Double Jeopardy Clause
"would be impaired by a prosecutor's intentional,
improper conduct." Id.
standard for double jeopardy following a defendant's
successful motion for mistrial
reviewed Pool, as well as other state court
decisions discussing the rigidity of the Kennedy
standard, this court agrees that the Kennedy
approach is unduly narrow. As stated in Kennedy,
intentional conduct by the state to "goad* the defendant
into requesting a mistrial certainly triggers the protections
of the Double Jeopardy Clause. However, for the reasons
discussed above, the protections of Nevada's Double
Jeopardy Clause are no less implicated when a prosecutor
intentionally engages in egregious misconduct for the
purposes of securing a conviction. Therefore, this court
finds that in addition to the conduct described in
Kennedy, the protections of Article 1, Section 8 of
the Nevada Constitution also attach to those instances 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.
analyzing whether double jeopardy will attach under this
approach, the court finds the test set forth in Pool
to be instructive, and adopts it today. Accordingly, when
evaluating a double jeopardy claim following a
defendant's motion for a mistrial, courts should consider
1. Mistrial is granted because of improper conduct or actions
by the prosecutor; and
2. such conduct is not merely the result of legal error,
negligence, mistake, or insignificant impropriety, but, taken
as a whole, amounts to intentional conduct which the
prosecutor knows to be improper and prejudicial, and which he
pursues for any improper purpose with indifference to a
significant resulting danger of mistrial. . .; and
3. the conduct causes prejudice to the defendant which cannot
be cured by means short of a mistrial.
Pool, 677 P.2d at 271-72; see also People v.
Dawson, 397 N.W.2d 277');">397 N.W.2d 277, 282 (Mich. Ct. App. 1986)
(adopting the Arizona test). With respect to the second prong
of this test, we first note that the question of whether a
prosecutor "knows" or "intends" his
conduct to be improper and prejudicial should generally be
measured by objective factors. As clarified by the court in
Pool, these factors may include
the situation in which the prosecutor found himself, the
evidence of actual knowledge and intent and any other factors
which may give rise to an appropriate inference or
conclusion. [A trial court] may also consider the
prosecutor's own explanations of his
"knowledge" and "intent" to the extent
that such explanation can be given ...