By: WISCONSIN LAW JOURNAL STAFF//October 15, 2010//
Criminal Procedure
Double jeopardy; mistrials
Where the prosecutor asked a question that elicited an answer that was not admissible, the district court should have held a hearing to inquire into the prosecutor’s motivation in asking the question.
“The district court reached its conclusion that the government had not intended to cause a mistrial without holding an evidentiary hearing, relying instead on the prosecutor’s explanation for his action and the objective facts and circumstances. We are troubled by the court’s decision to do so, because we believe that the facts and circumstances of what occurred are too strange, and the government’s explanation too lacking, to allow for a proper determination of the prosecutor’s intent based on inference alone. Given the district court’s clear ruling that Delportillo could not testify as to Castillo’s reference to Cornelius, the prosecutor’s question-‘Do you know if Baldomero Castillo . . . had other sources in supply of cocaine besides you?’-raises questions about the prosecutor’s intent that have not been satisfactorily answered. We conclude that an evidentiary hearing should have been conducted before a determination was made regarding the government’s intent. See Oseni, 996 F.2d at 189.”
Vacated and Remanded.
09-2584 U.S. v. Cornelius
Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Williams, J.
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