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The 5th Amendment to the U.S. Constitution prohibits subjecting a person to "Double Jeopardy." State courts are also banned from doing this under the 14th Amendment's Due Process Clause; Benton v. Maryland,395 U.S.785(1969). I claim that my right not to have been subjected to the second trial, one of the Double Jeopardy prohibitions, was violated. Normally the Double Jeopardy prohibition does not prevent a second trial when a conviction is overturned for "trial error." But there is an exception where the prosecution commits misconduct with the intention of subverting the protections of the Double Jeopardy Clause. Oregon v. Kennedy, 456 U.S. 667, 676 (1982). One such protection is from prosecutors seeking to get an advantage or more favorable opportunity to gain a conviction in a second trial; Arizona v. Washington, 434 U.S. 497, 508 (1978). The prosecutors' "intent" is the distinction between "trial error" and misconduct implicating the Double Jeopardy protection. Where prosecutors deceive the defense and the court (i.e., commit misconduct) to gain an advantage in a second trial; see, Lockhart v. Nelson, 488 U.S. 33, 36 n.2 (1988); that retrial is constitutionally forbidden. In a judicial system that is fair and provides equal justice for all, such cases should be rare. Let me show you how this was done in my case.
One of the first officers at the scene of the shooting was veteran Police Officer Barksdale. After wounded Melody Hopper cried out, "Help me," Barksdale found her laying under the bed in the northeast bedroom. He asked Melody who did this, but she either wouldn't or couldn't answer. After participating in the crime scene investigation Barksdale will go to the intensive care unit at the hospital to question Melody.
By the time Barksdale questions Melody, she has already nodded her head in response to questions or suggestions from her sister, Pat, and others. But Barksdale has the advantage of knowing the evidence at the crime scene and drawing conclusions from it. Police officers are aware that when questioning seriously injured people they have to make sure that person is not just agreeing with everything they are being asked. So they want to ask some questions they know the answer is, "No", as well.Barksdale first asks Melody three times if it was Steve Jacob that did the shooting. She nods in agreement each time. He then asks, "Did you crawl under the bed after Steve shot you?" Hopper nods in agreement with this too. Then for some reason, this experienced police officer asks a fourth time, "Was it Steve?" Hopper nods again. Why would Barksdale need to ask that same question a fourth time? Did he not trust the answers Hopper gave?
Next Officer Barksdale asks what seems like a simple, "yes or no," question. "Did you try and use the telephone?" But now, for the first time in all her interrogations, Hopper shrugs her shoulders. Does that mean, "I don't know whether I tried to use the telephone," or does it mean, "I don't want to answer any more questions about what happened"? Other than agreeing that many shots were fired, Melody doesn't answer any more questions about what happened at the crime scene.
All of this was unknown to me and the defense attorneys when a series of legal proceedings took place prior to the first trial. The first was the preliminary hearing in the County Court.
In preparation for the hearing a deposition was taken of the pathologist, Dr. Porterfield, who had performed the autopsies on both of the victims. Dr. Porterfield had been scheduled to be out of town during the preliminary hearing so his testimony would be presented by the deposition. The normal practice for depositions is that any documents that will be used by the witness in the deposition are provided to the opposing party prior to the deposition. One of the documents that the prosecution did not share with the defense was Melody's Hospital Chart. During the deposition defense counsel Berry asked Dr. Porterfield if he had looked through the hospital chart and asked him a number of questions about it. Mr. Berry then asked for the Hospital Chart, which Dr. Porterfield had with him, to be marked as an exhibit to the deposition. Prosecutor Gary Lacey opposed this and refused to provide Mr. Berry with a copy of the Hospital Chart.
One of the first things to happen in the preliminary hearing was the prosecution's offering the deposition of Dr. Porterfield into evidence. Mr. Berry stepped up to make sure the Hospital Chart was marked as an exhibit with the deposition. This upset Mr. Lacey a great deal and I remember the look on Judge Gradwohl's face showed it obviously something Mr. Lacey wasn't going to get away with. Berry then asked the Court to allow him to check out the Hospital Chart and the Judge allowed that.
Officer Domgard testified during the preliminary hearing. Domgard was the
lead investigator at the crime scene. While Mr. Lacey had Domgard on the witness
stand he went through a series of questions and answers about a bullet path. There was a bullet hole
through the east wall of the northeast bedroom where the shooting took place.
Domgard's Preliminary Hearing Testimony (pdf)
This is two pages from Officer Domgard's Testimony during the Preliminary Hearing. The significant part starts at Line 21: Did you find a defect...
By these questions and answers we were told this bullet went through the wall in the direction of the windshield of a car that was in the driveway just below the bedroom. They had color photographs of the defect in the windshield of the car in the driveway to show this.
There are two points to make about this: First, we came away from the preliminary hearing believing in this bullet having been fired in a downward direction from the bedroom through the wall out into the windshield of the car below. Second, why were we being told this? Again, being ignorant of the "law" at that time, I didn't figure this out until much later. In the preliminary hearing the prosecution has the simple burden of proving there is probable cause to believe that a crime has happened and probable cause to believe that the accused did it. Lawyers say this burden of proof is so low that any good prosecutor could indict a ham sandwich. But in this case the probable cause to believe a crime happened is that there are two dead bodies with gunshot wounds. A crime seems obvious. To accuse me the prosecution had my fingerprints on a window outside the house and Hopper's nodding statements in the hospital. So what is the purpose of Domgard's testimony about the direction of a bullet through the wall? How is that relevant to the prosecution's burden of proof?
It turns out it was not in any way relevant. Yet Prosecutor Lacey went out of his way to have Domgard tell us about this bullet trajectory. We would not find out that the bullet trajectory was actually in the opposite direction until right before the first trial began. That would turn out to be too late to understand what that meant.
After the case bound over to the District Court the next proceeding was the Plea in Abatement. There were three exhibits offered into evidence at the Plea in Abatement hearing. One of these exhibits was the Transcription of the Preliminary Hearing along with the exhibits from that County Court hearing. You would think this Transcription was now safely a part of the state courts' permanent records for this case. Guess again.
Next came Mr. Berry's discovery request and the District Court's Order to the prosecution to turn over all the discovery materials. The prosecution makes their response to the Order by filing all "their" discovery to the Clerk of the District Court and the defense. Once again, we will not find out till much later that there are a couple of things missing that should have been turned over.
In the spring of 1990, a series of hearings are held to determine whether the hearsay statements of Melody Hopper nodding in the hospital are admissible evidence.
Officer Barksdale testifies at the Admissibility Hearings. He describes
asking Melody three times if it was Steve who shot her. He then describes asking
her if she crawled under the bed after she was shot. But then he skips over the
part where he asked her for a fourth time if it was Steve, and describes asking
her about the telephone.
Barksdale's Admissibility Hearing Testimony (pdf)
This is what Officer Barksdale told us in the Admissibility Hearing. Compare this to what he wrote in his Police Report and note what he leaves out here. These are pages PT562 and PT563; the PT stands for PreTrial.
This was another deception, not only of the defense but of the Court as well. We had no idea he was leaving anything out because we did not have his report. Even without the report, had Barksdale said he repeated that question a fourth time, we would have wondered why he did that again. We could have asked him why he did that unusual thing. Was it because of the answer he got to the prior question about crawling under the bed? Officer Barksdale's redaction gave us no reason to question Hopper's answers. Without being able to show the Court that Hopper's statements could not be trusted they were ruled admissible for the first trial.
Before the end of the Admissibility Hearings the three Plea in Abatement exhibits are again accepted into evidence as pretrial exhibit #21. This is the second time the Transcription of the Preliminary Hearing is made an exhibit in the official state District Court records for this case. How and why does that Transcription end up missing from those records?
After the admissibility hearings were over the prosecution offered us a "reciprocal discovery agreement." They would provide the defense with copies of all the police reports and the defense would provide them with copies of all our investigations. At first I refused to go along because my parents were scheduled to be deposed. Mr. Berry begged me to agree with the swap. I didn't think or know what the police reports could have that would be helpful to my defense. I didn't want my parents accused of changing their testimony based on what was discovered in the police reports. Mr. Berry promised to give me a copy of all the police reports, which he did, and after their depositions I agreed to the swap.
The police report that caught my attention was Domgard's 46 page report
on the physical examination of the crime scene.
Officer Domgard's Supplementary Report (pdf)
This is Officer Domgard's full CSI report. The measurements for the bullet trajectory are found on pages 32 and 33. I recommend reading from page 30 to 33.
This is what you see CSI investigators on TV shows do. The report had detailed measurements of where every item was found in the house. Every shell casing, every blood stain, every bullet and bullet hole is so many feet and so many inches from this or that wall, etc. Since it was my belief that Melody had shot Mr. Etherton, I went looking for that shot through the east wall of the bedroom. I thought that if it was downward at a steep enough angle it would show the shot was fired by someone in or on the bed itself. That would have been Melody getting in his face with the gun for some reason. We had heard about the bumping and noise making in the living room from John Ingram's statement to the police. The Hospital Chart and autopsy reports had showed that Melody had bruises on her left thigh and upper right arm, not connected to any gunshot wounds.
Surprise! When I located the two measurements they showed the bullet was NOT in a downward trajectory at all. Instead it was upward, coming from underneath the bed. The bullet trajectory description begins at the bottom of p.31 of Domgard's report. Page 32 has it striking the wall 'approximately 6 1/4" above the floor.' Then on p.33 they found the bullet struck the stud inside the wall 'approximately 7 3/4" off the floor extended.' So from 6 1/4 inches to 7 and 3/4 inches is an upward direction. My initial confusion gave way to the realization that we had been lied to about this bullet trajectory; but why?
Analysis of the crime scene report, Melody's autopsy report, and the hospital records provide the answer. Melody had two gunshot wounds. One entered her right flank (side), nicked her liver, penetrated her diaphragm, and passed through all three lobes of her right lung. It exits out her back near the base of her neck. She bled profusely from this wound. When Barksdale found her under the bed he said her body was covered in blood. A large blood stain is found on the carpet under the bed [p.32, Domgard's report]. There are no blood trails leading into that stain in the police photos. The bullet slug is found 9' 3" from the bedroom's south wall [p.30, Domgard's report] and three shell casings are found along the north wall floor [p.30-31, Domgard's report]. Melody bled where she was shot, under the bed.
The second gunshot wound goes through her head. There is some question as to the direction but it damages behind her right ear and the cheekbone under her right eye. Which of these wounds was the entry or exit we can't say for sure because the trauma surgeon failed to properly label where the removed tissue came from.
If you place Melody's torso on the blood stain under the bed using the measurements in Domgard's crime scene report then her head is in the trajectory of the bullet that goes out the east wall in an upward direction. That is significant because it means that both of her gunshot wounds take place while she is laying under the bed. That is why Melody's answer surprised Officer Barksdale.
That is not just me using my three years of high school mechanical drafting
experience. All the evidence was shown to an expert witness the state often
Ballistics Expert's Report (pdf)
He comes to the same conclusion; Hopper received both wounds while under the bed. [p.2, Expert's report].
Now I could see why Barksdale asked Melody the question about crawling under the bed AFTER she was shot. He came to the same conclusion that I and the expert did and he wanted to ask that question in the form of a negative. She was supposed to answer the question by shaking her head, "No." When she didn't do that Barksdale was surprised and repeated the other question a fourth time. Melody caught on to the fact that he did not believe her too, and she begins shrugging her shoulders rather than give the wrong answer to the next question.
The crime scene report and Barksdale's report provide evidence that challenges the credibility of Hopper's hearsay statements. That has legal consequences. First, the Constitution's Due Process guarantee requires that the prosecution provide this information to the defense. The failure to do so is called a BRADY violation from the U.S. Supreme Court case, Brady v. Maryland, 373 U.S. 83 (1963). Defense Counsels Berry and Craeger pointed this out in a Motion for New Trial hearing that took place just before I was sentenced the first time. Prosecutor Lacey says the documents were provided in June; meaning prior to the trial.
Just providing the documents "prior to trial" is not legally adequate. The U.S. Supreme Court said this kind of evidence has to be provided at a time when the defense can effectively use it; U.S. v. Bagley, 473 U.S. 667 (1985). That means it should have been provided prior to the admissibility hearings. It was in those hearings that the defense could have shown the Court that Hopper's answers to the crime scene questions were either erroneous, intentionally false, and certainly not reliable enough to be admitted at trial.
That was what the Nebraska Supreme Court ruled in the appeal that overturned the first conviction and sent the case back for a retrial; State v. Jacob, 242 Neb 176, 201-202 (1993). Hopper's failure or inability to accurately recount what happened rendered her "statements" inadmissible. Her "statements" were not reliable enough to satisfy the Constitution's guarantee for defendants to confront the witnesses about such inconsistencies in their statements.
Did the prosecutors know this was going to happen? Surely they did. Upon hearing the Nebraska Supreme Court's reversal, former prosecutor (now elected County Attorney) Lacey tells the press that the case is in a shambles without Hopper's statements and he is not sure if they can retry it. See the Lincoln Journal Star article dated 1/9/1993. A few weeks later, however, he corrects himself and says the prosecution has "new evidence" with which they will get to use Hopper's dying declarations. See the Lincoln Journal Star article dated 2/24/1993. Only much later will we learn that this was just another deception by the prosecution.
The Double Jeopardy claim was then raised in a "Plea in Bar" filed back in the District Court of Lancaster County prior to the second trial. The Plea in Bar filed by attorney John Vanderslice resulted in a number of hearings before Judge Jeffre Cheuvront. Early on the Judge complained to Mr. Vanderslice about the record that would be evidence for the Plea in Bar. Mr. Vanderslice agreed to go through the trial records and separate out those portions that supported the Plea in Bar and would provide those to the Court separately. However, when he did a thorough job of that, the Judge objected that it was not proper to make separate parts of the record new exhibits in the case, even though that is what he had asked Mr. Vanderslice to do. It became obvious that the Court and officials felt insulted by the Plea in Bar.
The County Attorney's office opposed the Plea in Bar complaining it was a scandalous and scurrilous allegation. They objected to nearly every document offered into evidence even though the rules of evidence aren't supposed to apply in such hearings.
Significantly, the hearings did result in the Judge taking judicial notice
of (1) the Prosecutor's filed compliance with the Discovery Order (showing the
police reports were not there), (2) the Transcription of the Preliminary Hearing
(which he recognized had been an exhibit in the Plea in Abatement hearing),
(3) the Presentence Report (which contained the police reports), and (4) the
testimony at the admissibility hearings. The Plea in Bar then resulted in
Judge Cheuvront's 4 page Order denying the defenses' Plea.
Plea In Bar Order (pdf)
Let's look at some of the Judge's findings. First, he says a Plea in Bar is not available to raise these issues. The Nebraska Supreme Court will later say just the opposite in State v. Kula, 254 Neb 962 (1998). Then he fails to identify the controlling law; he relies upon an 8th Circuit case, U.S. v. Martin. The Judge did find as a fact that we did not get the police reports until after the admissibility hearings (p.3, "Subsequent to ... ). But he, like Mr. Lacey, must think this "prior to trial" availability of the reports was good enough. That is contrary to U.S. v. Bagley, as I described above. Finally he finds the conclusion that Hopper was shot under the bed, "Might or might not be adopted by the trier of fact." But it was not the "trier of fact" that was at issue. The issue was admissibility of those statements, which is a question of law, not fact. The Nebraska Supreme Court's ruling was that the statements were NOT admissible. Judge Cheuvront's ruling seems to say the admissibility error was harmless or not an error and the Nebraska Supreme Court was wrong.
Cheuvront goes off the deep end when he talks about the preliminary hearing. I never made any claim that the failure to provide the Hospital Chart had been a "discovery" violation. I simply wanted to show that where prosecutors had a choice, they chose to withhold documents from the defense. The standard practice for depositions was to share and they chose not to. Where the burden is to show the prosecutions' "intent," similar acts of withholding are relevant to show the prosecution "intended" to withhold the police reports the Due Process Clause required them to disclose. See, Evers v. Evers, 146 Neb 104 (1945))(Similar acts are evidence of intent). Judge Cheuvront then reaches his, now infamous, conclusion: "There is not one shred of evidence to support the bare allegations of prosecutorial misconduct .... " Maybe he knew what evidence would later turn up missing.
I appealed the denial of the Plea in Bar (S-93-520) but the Nebraska Supreme Court dismissed the appeal saying it was not the right time for it. Again, a few years later they would rule otherwise in State v. Kula, so I was cheated out of my right to that appeal.
I next went to the U.S. District Court filing a "pre-trial" Petition for
a Writ of Habeas Corpus. The Federal Courts grabbed hold of Cheuvront's "not a
shred of evidence" ruling and denied it without even looking at ANY evidence.
Docket Sheet printout showing the lack of State Court records (pdf)
I show this to demonstrate there was never any order to the Respondent to produce the State Court Records for the Federal Courts decision in Jacob v. Clarke.
For comparison, to show what that would look like I have the following:
Docket printout for the current Habeas Corpus Petition (pdf).
This is the Docket Sheet for the current Habeas Corpus action in the Federal Court. Look at Docket Entry #19, the Memorandum and Order for the Respondent to file state court records with the Court. Then Docket Entries #57 to 88 are those State Court Records being filed with the Court. That didn't happen in the first Habeas Corpus action; Jacob v. Clarke.
The 8th Circuit Court of Appeals will also deny relief in Jacob v. Clarke, 52 F.3d 178 (8th Cir. 1995). These Federal Courts' failure to examine any evidence becomes important later on.
The Federal Courts' refusal to look at this issue made the prosecution bold in their actions. They continue to tell the local press and the trial court that they have new evidence to use Hopper's statements in the second trial. The news accounts tell the potential jury pool that they will get to hear Hopper's statements in the second trial. In reality the prosecution never had any new evidence; this deception was aimed at getting the advantage of having prejudiced jurors tainted by the inadmissible statements in the second trial.
It wasn't just the press and the public that were deceived. Prosecutor Lipovski tells the defense and the Court that, " ... whatever came in the first time we are going to try to put on the second time .... " When asked to clarify that statement she says, "Your Honor, the state is not relaying its' strategy to the defense." Ms. Lipovski was maintaining the ruse before both the Court and the defense. This too is prosecutorial misconduct. Even the Nebraska Supreme Court has said that a prosecutor commits misconduct by persistently trying to present evidence that has been ruled inadmissible; State v. DuBray, 289 Neb 208, 225 (2014). My court-appointed defense counsel filed a Motion to exclude Hopper's statements from the second trial.
During jury selection the prosecution showed their intention to get jurors tainted by knowledge of Hopper's inadmissible statements. The trial judge would not remove potential jurors who had knowledge of Hopper's statements. 75% of the jury pool admitted knowing about the case and 97% admitted to reading or hearing the news report about the case. When the defense moved to strike a potential juror because of their prior knowledge, Prosecutor Lipovski objects and says:
The law in Nebraska is very clear. It is not a cause for challenge that a juror has read in the newspaper an account of the commission of the crime if the juror shall state under oath it is believed that they can render an impartial verdict according to the law and the evidence.
Following her statement the Double Jeopardy claim was raised again. The Judge denied it without another hearing.
There are two problems with Lipovski's statement. First, Nebraska law does not permit those who have read reports of witnesses' testimony to be jurors; State v. Smith, 5 Neb 181 (1876); which is what the newspaper reports of Hopper's statements were. Hopper's statements are more than just an account of the commission of a crime. Second, this shows what Ms. Lipovski had been seeking. During jury selection potential jurors would be asked the "magic" question: "Can you set aside what you know about Hopper's statements and render a verdict based on the evidence presented at trial?" Even the most prejudiced jurors could answer that question, "Yes," because they had been led to believe that Hopper's statements WOULD BE IN THAT EVIDENCE. These prejudiced jurors ARE the advantage the prosecution sought for the second trial. The result of the prosecution's "strategy" is that the defense does not have enough strikes to remove all the potential jurors that have knowledge of Hopper's statements from the jury.
A ruling on the defense's Motion to exclude Hopper's statements is not made until September 7th, 1994, AFTER the jury is sworn in and opening statements are made. The Judge instructed the jurors NOT to read the newspaper stories about the case and NOT to discuss the case with other jurors until deliberations began. We will find out later that they will not obey the Judge's instruction. The State took three weeks to present their case, without Hopper's statements. After they rested the attorneys appointed to defend me did not present my defense as promised.
Did the prosecution get the advantage they sought? Shortly after the defense began, a newspaper was found in the jury room. It was a three week old newspaper from 9/8/1994, containing the Lincoln Journal Star article from the day after the jury had been sworn in and took their oath to NOT read the newspapers. This newspaper was left on the central table folded open to show the story headlined across the top of the page, "Prosecution in Jacob case won't use dying declaration." One of the jurors not only read this newspaper account after being instructed not to, they kept it for three weeks, and then brought it into the jury room so all the other jurors could see it too. Whoever it was had expected to hear the statements and when it didn't happen they were upset enough to take action about it. Only two of the jurors involved in the incident are removed from the jury. But that is no excuse for having a jury selection process that was inadequate to reveal this kind of prejudice.
The Nebraska Supreme Court affirms the direct appeal of the second conviction in State v. Jacob, 253 Neb 950, 981 (1998); where the Court dodged the Double Jeopardy claim by saying I hadn't raised such a claim in the Court below. This would be the second time the State Courts denied my right to appeal that ruling.
Within the state statute's one year time limit I filed a Postconviction Relief Motion. Ultimately, after the State District Court sat on it for 12 years, that Motion was denied. The Court found the Double Jeopardy claim had been decided in Jacob v. Clarke and denied an evidentiary hearing. I objected when the prosecutors provided what they said was, "the entire record," because I was not allowed to be physically present. Over the telephone I was not able to tell if it actually was the "whole" record or not.
Some important parts of the record were missing. For example, the Preliminary Hearing Transcription was missing. Even the newspaper found in the jury room (Exhibit #672) is missing. By the time we get to the Federal Court there will be at least four other exhibits (#261 to 264) from the Plea in Bar hearing that were missing too. Part of the first Volume of the Bill of Exceptions where Lipovski says the State is going to use Hopper's statements in the second trial seems to be missing as well.
The Nebraska Supreme Court denies the appeal of the postconviction ruling (S-11-439) in a 32 page Order. They find Jacob v. Clarke decided the Double Jeopardy issue and the Preliminary Hearing transcription would not be relevant because neither the outcome of the Preliminary Hearing nor the outcome of the Plea in Abatement Hearing are at issue in the appeal. They ignore my claim that the transcription is relevant evidence of the prosecutions' deception and intent. The Court chooses not to publish this Order as is usually done. Obviously they were not proud enough of that piece of work to let the rest of the world read it.
Now I am in the Federal District Court with a Petition for a Writ of Habeas Corpus (4:10-CV-3073). Although there are many issues in this Petition, on the Double Jeopardy Claim the State makes two arguments: (1) That Jacob v. Clarke decided this issue; and (2) that the U.S. Supreme Court's decision in Oregon v. Kennedy, supra, is limited to mistrial cases, and since there was no mistrial in this case, it does not apply.
I disagree on both points. The second Double Jeopardy claim IS different from and more inclusive than the first because it includes the deception and intent to gain the advantage of prejudiced jurors in the second trial. This had not been and could not have been an issue raised or decided in Jacob v. Clarke. The U.S. Supreme Court says a court cannot rely upon another court's decision if the issue had not been fully and fairly litigated because the evidence, here the State Court records, was not before that court. The Federal Court's failure to get or examine any state court records in Jacob v. Clarke means that ruling cannot be relied upon as having reached a correct conclusion. Also, the state court records in this second petition has (or should have) more evidence to support a finding the prosecutors' misconduct now includes the deception to get an advantage in the second trial. The records show the prosecution GOT that advantage too; more than they hoped.
Second, in Oregon v. Kennedy, the Court stated a "manageable" standard to apply to Double Jeopardy claims. That standard is "the intent to subvert the protections of the Double Jeopardy Clause"; Kennedy, supra, at 676. The Court described the mistrial context as violating the defendant's "valued right to have his trial completed by a particular [the first] tribunal"; Id. at 671-672. The Court identified this valued right to the first tribunal as only "one of the principal threads making up the protection embodied in the Double Jeopardy Clause"; Id. at 673; not the only one. If the Supreme Court (or other Courts) want to "lop off" other protections of the Double Jeopardy Clause, such as when prosecutors seek to intentionally gain an advantage in a second trial, the Court would have said the standard was simply, "the intent to subvert the valued right to the first tribunal." But they did not. Justice Stevens argued in his concurring opinion about the Court "lopping off" some of the protections of the Double Jeopardy Clause but the Majority rejects this in a footnote; Id. at 678 n.8; and cites to cases where the prosecutors' actions simply threaten the harassment of an accused by successive prosecutions. In Lockhart v. Nelson, 488 U.S. 33, 36 n.2, a case not involving a mistrial, the U.S. Supreme Court stated that a prosecutor's deception of the court is a condition where the standard from Oregon v. Kennedy would be applied.
Justice Stevens says that the prosecution should have one full and fair opportunity to present their evidence to a jury; Kennedy, supra, at 682. If the State has not had that one full and fair opportunity it is only because of the prosecutions' intentional misconduct to have an unfair, unconstitutional, advantage in both-trials. The State has had more than its' fair opportunity and it is their intentions which invoke the protection of the Constitution's Double Jeopardy prohibition in this case. I should not have been tried a second time.
In summary, this case is a textbook example of official misconduct. Every lawyer knows the prosecution had no valid reason to tell us about the bullet direction in the Preliminary Hearing. The prosecution deceived us so that we wouldn't connect it to Hopper being under the bed. To further hide that truth they kept the documents, that were required to be provided to the defense, until they got Hopper's hearsay statements admitted in the first trial. The truth about that bullet trajectory showed Hopper's statements were unreliable, inadmissible and resulted in reversing the first conviction. That misconduct was a BRADY violation whether, in "bad faith", they knew it or not. Lipovski continued that misconduct by deceiving the Court, the defense, the press, and all the potential jurors for the second trial, by continuing the ruse of "new evidence" to allow the inadmissible evidence. Making all the potential jurors believe they were going to hear Hopper's statements before the second trial started, gave the prosecution the advantage of prejudiced jurors that they sought. When this was revealed, the State Courts began making the evidence disappear. How could anyone who knows the truth believe that I have had, or will ever have, a "fair" trial.
It is hard to say what the Federal District Court will do. Our three branch system of government was designed so that the separation of powers would provide a mutually assured accountability of the power of government. When it comes to the Double Jeopardy protection in the judicial branch, there is no independent oversight of the abuses of the courts or their officers. The Double Jeopardy protection comes from the history of the British colonial courts and prosecutors that allowed such abuses prior to the American revolution. But even now that this protection is written into the U.S. Constitution we are back to dealing with a court system and its' officers that only have to sit in judgment of themselves. When saddled with the burden of such introspection, the only thing that seems to happen is the Courts make the evidence disappear. Is "Double Jeopardy" just certain abuses within the judicial institution or is it a flaw of the institution itself? Can any Court enforce the protection of the Double Jeopardy Clause? If not, does it really exist or is this part of the U.S. Constitution just another tooth fairy story for adults?