People v. Griffith

SIXTH DIVISION
SEPTEMBER 30, 2010

No. 1-09-1001

THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 85 C 6850
)
EVAN GRIFFITH, ) The Honorable
) John J. Fleming,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

Defendant Evan Griffith was convicted of felony murder in a

jury trial in 1999, during which, according to the published

opinion of this court, prosecutor Laura Morask engaged in

numerous instances of prosecutorial misconduct, which "called

into question the State's commitment to fair and just

enforcement of the law." People v. Griffith, 334 Ill. App. 3d

98, 119, 777 N.E.2d 459 (2002). Nevertheless, "the overwhelming

evidence in support of the felony murder charge *** constrained

[this court] to affirm Griffith's conviction and sentence."

Griffith, 334 Ill. App. 3d at 121. In 2008, a federal district

court, quoting at length from the scathing review by this court

of the prosecutor's trial conduct, granted the defendant's

petition for a writ of habeas corpus and ordered a new trial.

The district court found prosecutor Laura Morask's "misconduct

'so infected the trial with unfairness as to make the resulting

conviction a denial of due process.' " United States ex rel.
No. 1-09-1001

Griffith v. Hulick, 587 F. Supp. 2d 899, 911, 912-13 (N.D. Ill.

2008) (mem. op.), quoting Darden v. Wainwright, 477 U.S. 168,

181, 91 L. Ed. 2d 144, 157, 106 S. Ct. 2464, 2471 (1986). The

State did not appeal the grant of the defendant's petition, but

instead obtained a new indictment against the defendant. Before

the circuit court of Cook County, the defendant filed a motion

to dismiss the new indictment on double jeopardy and due process

grounds, which Judge John J. Fleming denied. Before this court,

in his interlocutory appeal, the defendant concedes "the current

case law in Illinois would not apply the Double Jeopardy bar to

his case" because both the Supreme Court of the United States

and the Illinois Supreme Court require the intent behind the

prosecutor's misconduct be to goad the defendant into seeking a

mistrial to trigger the double jeopardy bar to a retrial. He

urges that we read the double jeopardy clause of the Illinois

Constitution much as the supreme courts of Oregon, Arizona, New

Mexico, Pennsylvania, and Hawai'i, have read their respective

constitutional double jeopardy provisions to provide expanded

protection to bar a retrial when "intentional and systematic"

prosecutorial misconduct deprives a defendant of fundamental

fairness at trial. The State responds that only our supreme

court can change current law and that under existing Illinois

law, Illinois courts have repeatedly found unavailing similar

claims based on prosecutorial misconduct for failure to

demonstrate the prosecution intended to cause a mistrial. We

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No. 1-09-1001

agree with the State. The defendant's retrial is not barred

under current Illinois law, by which we are bound. We do not

consider the defendant's separate due process claim because it

is not subject to review on interlocutory appeal. We affirm.

BACKGROUND

This case has now been recounted in multiple court

decisions during its more than decade-long history: Griffith,

587 F. Supp. 2d 899; People v. Griffith, No. 1-03-0713 (March

22, 2005) (unpublished order under Supreme Court Rule 23);

Griffith, 334 Ill. App. 3d 98; People v. Griffith, No. 1-96-0112

(April 24, 1997) (unpublished order under Supreme Court Rule

23). We relate only the procedural history and the facts

necessary to address the issue before us. As the defendant

asserts, many of the facts are beyond dispute under the doctrine

of collateral estoppel, citing People v. Tenner, 206 Ill. 2d

381, 396-97, 794 N.E.2d 238 (2002).

On May 11, 1985, 16-year-old Evan Griffith stabbed and

killed 46-year-old Leroi Shanks, a former neighbor who had

permitted the homeless Griffith to stay with him in exchange for

sexual favors. In 1986, Griffith pleaded guilty to murdering

Shanks and received a 35-year sentence.

The defendant filed a postconviction petition, contending

he pleaded guilty and accepted the 35-year sentence because he

was told that he was otherwise eligible for the death penalty.

He later learned, however, that he was not death-penalty

3
No. 1-09-1001

eligible because he was a minor at the time of the offense. His

conviction, arising from an involuntary plea of guilty, was

vacated, and a new trial ordered. Griffith, No. 1-96-0112.

Prosecutorial Misconduct

In 1999, the defendant proceeded to a jury trial on the

1985 murder of Shanks. The defendant claimed self-defense.

During his testimony, he suggested that his actions were

motivated by fear that Shanks would kill him, hurt him, or

sexually abuse him, when Shanks, returning home, found the

defendant had broken into a safe Shanks kept in his home. The

State and the defendant presented various experts regarding the

defendant's mental state at the time of the killing.

Lead prosecutor Laura Morask sought the trial court's

permission to examine the defendant and his expert witness

regarding a 1990 incident that occurred while the defendant was

incarcerated for Shanks' murder. In that incident, the

defendant was tried and convicted before a jury of killing a

fellow inmate and was sentenced to death.1 Prosecutor Morask

told the court it was necessary to inquire into the 1990

incident to negate the defense theory that the defendant was

influenced by post-traumatic stress disorder (PTSD) when he

killed Shanks. Griffith, 334 Ill. App. 3d at 117. She claimed

1
In 2003, Illinois Governor George Ryan commuted his

sentence to life in prison.

4
No. 1-09-1001

the State's expert had examined the 1990 records and found them

relevant to rebut the PTSD defense. The trial court expressed

concern that evidence of the 1990 incident would unduly

prejudice the defendant, but nonetheless allowed the prosecutor

to raise the 1990 incident based on her representation that she

would "sanitize" the evidence and avoid calling the 1990

incident a "murder." Griffith, 334 Ill. App. 3d at 117. She

stated, " 'We don't have to go into that the victim died, what

his sentence was, or any of that. *** We don't have to put in

the fact that he was in prison when the stabbing occurred.' "

Griffith, 334 Ill. App. 3d at 117.

The State's expert had in fact never seen records of the

1990 incident and knew nothing about them. Griffith, 334 Ill.

App. 3d at 117. On cross-examination of the defendant's expert,

the prosecutor broke her promise not to reference the 1990

"murder." Griffith, 334 Ill. App. 3d at 117. In the ensuing

sidebar, she moved to strike her remark and then referenced "the

1990 murder" during closing argument. Griffith, 334 Ill. App.

3d at 118. The prosecutor also intimated on cross-examination

of the defendant that the 1990 incident took place in a prison.

Griffith, 334 Ill. App. 3d at 117.

The trial court had prohibited the prosecution from

informing the jury that the 1990 incident had resulted in a

conviction, but the prosecutor noted on cross-examination of the

defendant's expert that the expert had been hired after the 1990

5
No. 1-09-1001

incident "to lessen [someone's] sentence." Griffith, 334 Ill.

App. 3d at 118. According to the trial court's instructions,

the jury was not to know the defendant had been sentenced to

death for the 1990 murder, but upon cross-examination of another

defense expert, the prosecutor indicated the expert had

previously been retained in another case by the "Capital

Resource Center," and stated the Center "deals with trying to

get a prisoner not to get the death penalty." Griffith, 334

Ill. App. 3d at 118.

During her rebuttal argument, the prosecutor likened the

defendant to "walking barbeque tongs." Griffith, 334 Ill. App.

3d at 119. Regarding the 1990 killing, she argued the defendant

just "stuck his arm out and [the victim] just happened to fall

onto the knife." Griffith, 334 Ill. App. 3d at 119. With that

skill, the defendant could be "worth a lot of money. You would

put him near your barbeque and hot dogs and hamburgers just fly

on and get poked by him." Griffith, 334 Ill. App. 3d at 119.

She compared the defendant to " 'a grenade in a baby carriage' "

that " 'explodes in your face' " (Griffith, 587 F. Supp. 2d at

906), and called him a " 'deranged Energizer bunny' " (Griffith,

587 F. Supp. 2d at 912). She said that accepting the argument

by defense counsel would give the defendant a " 'license to

kill' " and individuals like defense counsel were " 'the reason

Shakespeare said let's kill all the lawyers.' " Griffith, 334

Ill. App. 3d at 119. She called the defendant's witnesses " 'a

6
No. 1-09-1001

joke,' " " 'ridiculous,' " and " 'pathetic.' " Griffith, 587 F.

Supp. 2d at 906.

The defendant moved for a mistrial several times during the

trial, with the trial court denying each motion. Griffith, 587

F. Supp. 2d at 904. The jury found the defendant guilty of

felony murder and armed robbery. He was sentenced to life in

prison without the possibility of parole.

The Appeals

The defendant appealed his conviction, arguing, among other

claims, that he was denied due process and a fair trial because

the lead prosecutor committed numerous instances of misconduct,

in particular, her use of the 1990 killing by the defendant. We

found "the prosecutor had no intention of limiting evidence of

the 1990 killing to the question of whether Griffith had PTSD in

1985." Griffith, 334 Ill. App. 3d at 117. The prosecutor had

used the 1990 killing "to convince the jury Griffith was a

violent and dangerous man who had a propensity to kill with a

knife." Griffith, 334 Ill. App. 3d at 117. "[Defense]

[o]bjections were made, some sustained, some overruled. It

didn't matter. Nothing stopped this prosecutor." Griffith, 334

Ill. App. 3d at 118. The "prosecutor's behavior *** called into

question the State's commitment to fair and just enforcement of

the law." Griffith, 334 Ill. App. 3d at 119.

Nevertheless, the overwhelming evidence constrained us to

affirm the defendant's conviction "despite the intentional and

7
No. 1-09-1001

systematic misconduct of the prosecutor." Griffith, 334 Ill.

App. 3d at 119. "Not only did Griffith tell three friends, the

arresting police officers, and the assistant State's Attorney he

killed Shanks for the money, he made what amounts to a judicial

confession when he testified at trial." Griffith, 334 Ill. App.

3d at 111. We found, "no rational jury could have found the

defendant not guilty of felony murder." Griffith, 334 Ill. App.

3d at 119.

Following our decision, the defendant's initial pro se

postconviction petition alleging numerous instances of

ineffective assistance of counsel was summarily dismissed.

Griffith, No. 1-03-0713, slip op. at 7. We affirmed the

dismissal because no prejudice could be shown in light of the

"evidence at trial overwhelmingly in favor of conviction."

Griffith, No. 1-03-0713, slip op. at 7.

The defendant then brought a petition for a writ of habeas

corpus before the federal district court pursuant to 28 U.S.C.

§2254 (2006). The district court found the facts of the case as

set forth in Griffith, 334 Ill. App. 3d 98, to be

uncontroverted, which it repeated, along with some additional,

uncontroverted facts gleaned from the record. Griffith, 587 F.

Supp. 2d at 901. The court found the record "confirms many

times over the Appellate Court's finding of repeated, deliberate

prosecutorial misconduct." Griffith, 587 F. Supp. 2d at 911.

It found the prosecutor's "dehumanizing [rhetoric] *** was

8
No. 1-09-1001

leveraged by her misuse of the 1990 crime evidence, the

admission of which she had obtained on false premises."

Griffith, 587 F. Supp. 2d at 912. The court concluded the

defendant's conviction was a " 'denial of due process' " that

"deprived Mr. Griffith of a fair trial." Griffith, 587 F. Supp.

2d at 912-13, quoting Darden, 477 U.S. at 181, 91 L. Ed. 2d at

157, 106 S. Ct. at 2471.

The court found the trial error was not subject to harmless

error analysis, but rather required automatic reversal because

" ' "the integrity of the proceeding was so infected that the

entire trial was unfair." ' " Griffith, 587 F. Supp. 2d at 914,

quoting Phillips v. Woodford, 267 F.3d 966, 986 n.14 (9th Cir.

2001), quoting Hardnett v. Marshall, 25 F.3d 875 879 (9th Cir.

1994). "To excuse the prosecutor's lies to the court, misuse of

evidence, and other misconduct in this case would indeed render

meaningless the principle that every defendant has a right to a

fair trial." Griffith, 587 F. Supp. 2d at 914, citing Brecht v.

Abrahamson, 507 U.S. 619, 638 n.9, 123 L. Ed. 2d 353, 373 n.9,

113 S. Ct. 1710, 1722 n.9 (1993). The court granted the

defendant's petition for a writ of habeas corpus. Griffith, 587

F. Supp. 2d at 914.

After she granted the writ, Judge Bucklo of the federal

district court entered an order on November 20, 2008, that the

defendant be "released from custody on the judgment of

conviction entered by the Circuit Court of Cook County in case

9
No. 1-09-1001

number 85 C 6850 unless, within 120 days of the entry of the

amended judgment, the State of Illinois elects to commence

proceedings to afford petitioner a new trial." The State did

not appeal the decision, but in compliance with the federal

order, filed a new indictment against the defendant.

Following his arraignment, the defendant moved to dismiss

the indictment as barred by the protection against double

jeopardy and by the due process clause of the United States and

Illinois Constitutions. The State countered that under federal

and Illinois law, there is no bar to a retrial when the reversal

of a defendant's conviction is not based on the insufficiency of

the evidence. The State emphasized that there was no evidence

the prosecution had intended to "goad" the defendant into

seeking a mistrial, which was never actually declared.

The circuit court found "[d]ouble jeopardy does not apply"

because the State acted within its discretion to retry the

defendant within 120 days. It also noted the trial had ended

not in a mistrial, but in a conviction that was later

overturned. Relying on People v. Sales, 357 Ill. App. 3d 863,

830 N.E.2d 846 (2005), the court declined to reach the issue of

the prosecution's intent in the absence of a mistrial, which

precludes a finding of a double jeopardy violation. Finally,

the court found the defendant's due process argument unavailing

in light of this court's ruling that no rational jury would have

acquitted the defendant. Griffith, 334 Ill. App. 3d at 119.

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No. 1-09-1001

The defendant timely appeals the denial of his pretrial

motion to dismiss the indictment pursuant to Supreme Court Rule

604(f). 210 Ill. 2d R. 604(f).

ANALYSIS

The defendant acknowledges that in Illinois, no precedent

exists for applying the double jeopardy bar to circumstances

present in the case at bar. "No Illinois case has considered or

decided -- one way or the other -- the applicability of Double

Jeopardy and Due Process protections in the context of

intentional and systematic prosecutorial misconduct like that in

Mr. Griffith's case." To support his contention that retrial

should be barred under the Illinois Constitution's double

jeopardy clause, the defendant proposes we look to the more

expansive standards of other states under their respective

double jeopardy provisions. In the alternative, he contends

dismissal is warranted under the due process provisions of the

United States and Illinois Constitutions.

The State counters that the defendant's claims are not

novel under Illinois case law, which properly limits the remedy

for prosecutorial misconduct to a retrial unless the prosecution

intends and causes a mistrial. The State also contends the

defendant has no right to advance his due process argument where

the sole basis of his pretrial appeal is Supreme Court Rule

604(f) (210 Ill. 2d R. 604(f) ("Appeal by Defendant on Grounds

of Former Jeopardy")), which limits interlocutory appeals to

11
No. 1-09-1001

denials of claims of double jeopardy.

Standard of Review

Illinois Supreme Court Rule 341(h)(3) requires an appellant

include "a concise statement of the applicable standard of

review for each issue [raised]." 210 Ill. 2d R. 341(h)(3). If

the appellant fails to set forth the applicable standard of

review, the appellee must do so. 210 Ill. 2d R. 341(i). In

violation of Rule 341, neither party includes the applicable

standard of review on each issue raised. We determine the

standard of review without the input of the parties.

"Generally, abuse of discretion is the appropriate standard

for reviewing a trial court's ultimate ruling on a motion to

dismiss charges on double-jeopardy grounds." People v. Brener,

357 Ill. App. 3d 868, 870, 830 N.E.2d 692 (2005). This is true

where the court faces the factual question whether "the

prosecutor goaded defendant into moving for a mistrial." People

v. Campos, 349 Ill. App. 3d 172, 174, 812 N.E.2d 16 (2004). We

review the trial court's decision against the manifest weight of

the evidence where "the issue *** is the intent of the

prosecutor himself, which is a factual question that the trial

court is in the best position to determine." Campos, 349 Ill.

App. 3d at 175.

Here, the defendant does not argue that the prosecutor

intended to induce the defendant to move for a mistrial, though

her conduct triggered numerous unsuccessful requests for a

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No. 1-09-1001

mistrial. Rather, the parties dispute the legal effect under

the Illinois Constitution's double jeopardy provision of the

"intentional, systematic, deceptive, and deplorable

prosecutorial misconduct," as stated by the defendant, during

his jury trial, a characterization consistent with that of the

federal and state courts in the published opinions of this case.

In reviewing the denial of a motion to dismiss on double

jeopardy grounds where "neither the facts nor the credibility of

witnesses is at issue, we address a purely legal question, and

our standard of review is de novo." In re Gilberto G.-P., 375

Ill. App. 3d 728, 730, 873 N.E.2d 534 (2007), citing Brener, 357

Ill. App. 3d at 870 (applying de novo review where the only

issue is whether the defendant's actions constituted a single

act precluding more than one prosecution for double jeopardy

purposes). Accordingly, we review de novo the circuit court's

dismissal of the defendant's double jeopardy claim.

Double Jeopardy Protection

The double jeopardy clause of the United States

Constitution provides: "No person shall *** be twice put in

jeopardy of life or limb ***." U.S. Const., amend. V. The

Illinois Constitution of 1970 contains a nearly identical

provision: "No person shall *** be twice put in jeopardy for the

same offense." Ill. Const. 1970, art. I, §10. Section 3-

4(a)(3) of the Criminal Code of 1961 codifies the constitutional

double jeopardy rules. 720 ILCS 5/3-4 (West 2004).

13
No. 1-09-1001

Though the defendant asserts his claim under both the United

States and Illinois Constitutions, he urges this court to broaden

the protection under the state double jeopardy clause as have the

highest courts of at least five states. This, we take, as an

implicit acknowledgment that the federal standard remains as

stated in Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102

S. Ct. 2083 (1982), which our supreme court has followed in its

rulings. "The Supreme Court in Kennedy, specifically rejecting a

more generalized standard of 'bad faith conduct' or 'harassment'

in judging whether a mistrial was provoked, held that the error

must disclose the prosecutor's intent to provoke a motion for a

mistrial. We followed this standard of intent in [People v.

Davis, 112 Ill. 2d 78, 86, 491 N.E.2d 1163 (1986)]." (Emphasis

in original.) People v. Ramirez, 114 Ill. 2d 125, 130, 500

N.E.2d 14 (1986).

To challenge the circuit court's ruling below, the defendant

first argues that just because no mistrial was declared, his

double jeopardy claim should not be foreclosed. See Sales, 357

Ill. App. 3d at 868 (no cognizable double jeopardy claim based on

the granting of a new trial because it is not the functional

equivalent of a mistrial). The logic of this argument has been

acknowledged by our supreme court:

"The argument may be made that the

reversal of a trial court's erroneous denial

of a motion for a mistrial, which the State

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No. 1-09-1001

has intentionally provoked, deserves the same

preclusive effect as if the mistrial had been

declared in the first instance." Davis, 112

Ill. 2d at 86, citing Kennedy, 456 U.S. at

687 n.22, 72 L. Ed. 2d at 432 n.22, 102 S.

Ct. at 2095-96 n.22) (Stevens, J.,

concurring, joined by Brennan, Marshall, and

Blackmun, JJ.) (it is "irrational" to permit

retrial where the prosecution intended to

provoke a mistrial that the trial court

erroneously failed to declare), quoting

Commonwealth v. Potter, 478 Pa. 251, 282, 386

A.2d 918, 933 (1978).

See also United States v. Wallach, 979 F.2d 912, 916 (2d Cir.

1992) ("There is no justification for [the] distinction" between

a defendant who moves successfully for a mistrial and one whose

conviction is reversed on appeal); State v. Jorgenson, 198 Ariz.

390, 392, 10 P.3d 1177, 1179 (2000) ("Surely a defendant whose

mistrial motion was erroneously denied, as in the present case,

should have the same constitutional protection as one whose

motion was correctly granted ***").

The argument that a reviewing court's decision, that a

mistrial was erroneously denied, should have the same preclusive

effect was not resolved in Davis because the Davis defendant

never moved for a mistrial. Davis, 112 Ill. 2d at 86. The court

15
No. 1-09-1001

also noted "that the record contains nothing that would support

the inference that the prosecutor committed the errors in

question with the intent to provoke a motion for a mistrial."

Davis, 112 Ill. 2d at 86.

As a foundation for his double jeopardy claim, the defendant

before us does not reassert his argument from his direct appeal

that the prosecutorial misconduct "would have justified the trial

judge's declaring a mistrial" (Ramirez, 114 Ill. 2d at 129),

given that he moved repeatedly for a mistrial. In Ramirez, the

defendant then argued that had the trial judge declared a

mistrial based on the asserted errors, the nature of the errors

"were so egregious that it can be inferred that the prosecutor

intended to provoke a mistrial." Ramirez, 114 Ill. 2d at 130.

To support his contention that the asserted errors were

"egregious," the Ramirez defendant pointed to the supreme court's

observation "that the prosecutor had 'purposely' " committed one

of the asserted errors. Ramirez, 114 Ill. 2d at 131. The

supreme court in Ramirez did not reject this argument as contrary

to the federal double jeopardy standard requiring the declaration

of a mistrial, which the court in Davis had declared as the

Illinois standard under the limited lockstep doctrine. Rather,

the Ramirez court determined that the error found to be

reversible was not sufficiently egregious to give rise to an

inference that the prosecutor intended to provoke a mistrial:

"[T]he reference to the defendant's silence

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No. 1-09-1001

***, which we held to be error, did not even

prompt a defense objection, much less a

motion for mistrial. 'In view of the failure

of both the defense counsel and the trial

judge to recognize immediately the need for a

mistrial, it is difficult to credit the

premise that the prosecutor could not have

committed such conduct without knowing and

intending that mistrial would result.' "

Ramirez, 114 Ill. 2d at 131, quoting United

States v. Curtis, 683 F.2d 769, 777 (3d Cir.

1982), cert. denied 459 U.S. 1018, 74 L. Ed.

2d 512, 103 S. Ct. 379 (1982).

Rather than follow the line of argument put forth by the

Ramirez defendant (as the argument is foreclosed by Tenner based

on our rejection of his mistrial argument on direct review), the

defendant before us argues that the reasoning underlying the

numerous out-of-state decisions broadening the protection under

the double jeopardy clause should apply to his claim based on

the egregious prosecutorial misconduct engaged in by the lead

prosecutor. He contends the intentional and systematic

misconduct undermined the very foundation of a fair trial, which

deprived the defendant of his right "to have the charges against

him decided by the first trier of fact," a principal aim behind

the double jeopardy protection. Ramirez, 114 Ill. 2d at 129;

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No. 1-09-1001

Kennedy, 456 U.S. at 673, 72 L. Ed. 2d at 423, 102 S. Ct. at

2088 ("one of the principal threads making up the protection

embodied in the Double Jeopardy Clause is the right of the

defendant to have his trial completed before the first jury

empaneled to try him"). According to this argument, it should

not matter that the prosecutor that engages in egregious

misconduct had no intent to goad the defendant into seeking a

mistrial. "One of the most persuasive criticisms of the Kennedy

rule is that the subjective intentions of the prosecutor are

inherently unknowable." State v. Breit, 1996-NMSC-067, ¶23, 122

N.M. 655, 930 P.2d 792, citing Kennedy, 456 U.S. at 688, 72 L.

Ed. 2d at 432-33, 102 S. Ct. at 2096 (Stevens, J., concurring)

("It 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"); see Commonwealth v. Smith, 532 Pa.

177, 180-81, 615 A.2d 321, 322 (1992), quoting Commonwealth v.

Simons, 514 Pa. 10, 23, 522 A.2d 537, 544 (1987) (Flaherty, J.

concurring) (" 'Quite the opposite [intent is involved], the

intent would be that the defendant should never know how his

wrongful conviction came about' ").

Notably, the parties agree that the prosecutor's intent

behind the numerous instances of misconduct was not to induce

the defendant to seek a mistrial. While we note the State's

assertion in a footnote that it "vigorously disagree[d]" with

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No. 1-09-1001

the federal district court's decision and the decision of the

Illinois Attorney General's office not to appeal the ruling, the

State is no longer free to assert its disagreement over the

severity of its prosecutor's misconduct. People v. Tenner, 206

Ill. 2d 381, 396-97, 794 N.E.2d 238 (2002) (collateral estoppel

bars relitigation of an issue decided in a prior case, including

the defendant's federal habeas corpus proceedings).

In Smith, the Pennsylvania Supreme Court confronted the
issue of "whether the double jeopardy clause bars retrial

following intentional prosecutorial misconduct designed to

secure a conviction through the concealment of exculpatory

evidence." Smith, 532 Pa. 177 at 179, 615 A.2d at 323. The

Pennsylvania Supreme Court determined that the circumstances in

Smith warranted a departure from the federal standard that

double jeopardy attaches only when a mistrial has been

intentionally caused by prosecutorial misconduct. "We now hold

that the double jeopardy clause of the Pennsylvania Constitution

prohibits retrial of a defendant not only when prosecutorial
misconduct is intended to provoke the defendant into moving for

a mistrial, but also when the conduct of the prosecutor is

intentionally undertaken to prejudice the defendant to the point

of the denial of a fair trial." Smith, 532 Pa. at 186, 615 A.2d

at 325.

We note that District Judge Bucklo ruled that the

misconduct engaged in by prosecutor Laura Morask pushed the

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No. 1-09-1001

trial of the defendant in this case to the same point as in

Smith:

"The prosecution's dogged focus on the

improper theme of Mr. Griffith's 'propensity

to kill with a knife,' [citation], shaped the

course of the proceedings and permeated the

entire atmosphere of the trial. Such a

climate is inherently and fundamentally
unfair. 'It is axiomatic in our system of

justice that an individual is entitled to a

fair trial-not a perfect one. Nevertheless,

the distance between the concepts of fair and

perfect cannot be so great as to render the

former meaningless.' " Griffith, 587 F.

Supp. 2d at 914, quoting United States v.

Mannie, 509 F.3d 851, 857 (7th Cir. 2007).

The defendant acknowledges that even if his double jeopardy

claim had been before the federal district court and Judge

Bucklo had been asked to bar the retrial of the defendant based

on her finding of a constitutionally unfair trial, retrial could

not be barred because the instant case does not fall under the

federal standard established by Kennedy as it cannot be

contested that the prosecutor's intent here was not to goad the

defendant into a seeking a mistrial. Kennedy, 456 U.S. at 676,

72 L. Ed. 2d at 425, 102 S. Ct. at 2089 ("Only where the

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No. 1-09-1001

governmental conduct in question is intended to 'goad' the

defendant into moving for a mistrial may a defendant raise the

bar of double jeopardy to a second trial after having succeeded

in aborting the first on his own motion").

The defendant correctly notes that states are not bound by

the holding in Kennedy, quoting Justice Brennan's concurring

opinion: "[N]othing in the holding of the Court today prevents

the state courts *** from concluding that *** retrial would
violate the provision of the [state] constitution that prohibits

double jeopardy ***." Kennedy, 456 U.S. at 680, L. Ed. 2d at

428, 102 S. Ct. at 2091 (Brennan, J., concurring, joined by

Marshall, J.). Taking their cue from Justice Brennan, other

state courts, including Oregon on remand from Kennedy, have

adopted broader rules governing the consequences of

prosecutorial misconduct under the state provision providing

double jeopardy protection. See State v. Kennedy, 295 Or. 260,

666 P.2d 1316 (1983); Pool v. Superior Court, 139 Ariz. 98, 677

P.2d 261 (1984); Smith, 532 Pa. 177, 615 A.2d 321; State v.
Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792; State v.

Rogan, 91 Haw. 405, 984 P.2d 1231 (1999). The defendant urges

Illinois to join these states.

Unlike the courts that issued the decisions cited by the

defendant, we are not the highest court of this state. See

People v. Artis, 232 Ill. 2d 156, 164, 902 N.E.2d 677 (2009)

("The appellate court lacks authority to overrule decisions of

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No. 1-09-1001

this court, which are binding on all lower courts"). Only our

supreme court is free to veer away from the federal standard.

Compare People v. Pendleton, 75 Ill. App. 3d 580, 593, 394

N.E.2d 580 (1979) (retrial may be precluded for misconduct

"motivated by bad faith or undertaken to harass or prejudice the

accused"), with People v. Marchbanks, 125 Ill. App. 3d 796, 798-

99, 466 N.E.2d 668 (1984) (declining to apply the older

Pendleton standard and applying the stricter standard of Kennedy

instead).

As a lower court, we are limited to following established

case law from our supreme court, though we may find little

disagreement with the reasoning of the highest court in our

sister state in explaining its departure from the Kennedy

standard:

"We have stated that our State

Constitution's double-jeopardy provision 'is

subject to the same construction and

interpretation as its counterpart in the

Fifth Amendment to the United States

Constitution. [Citation.] That does not

mean, however, that we must embrace United

States Supreme Court precedent when it

changes a standard formerly adopted by this

Court. [Citation.] In [a case departing from

United States Supreme Court precedent,] we

22
No. 1-09-1001

stated that we will 'undertake independent

analysis of our state constitutional

guarantees when federal law begins to

encroach on the sanctity of those

guarantees.' [Citation.] ***

***

*** [W]hen this Court derives an

interpretation of New Mexico law from a

federal opinion, our decision remains the law

of New Mexico even if federal doctrine should

later change. [Citation.]" Breit, 1996-NMSC-

067, ¶¶25, 27, 122 N.M. 655, 930 P.2d 792.

Though the State argues that the absence of a mistrial

precludes a finding of a double jeopardy violation (citing

Sales), as we noted, our supreme court has observed that a case

may arise that warrants a departure from federal law under the

lockstep doctrine. See People v. Caballes, 221 Ill. 2d 282,

299, 851 N.E.2d 26 (2006) ("this court has, on occasion,

departed from strict lockstep interpretation when circumstances

warrant"). For the same reason that the erroneous denial of a

defendant's motion for a mistrial should not necessarily

preclude a review of the intent behind the prosecutorial

misconduct to trigger double jeopardy protection (Davis, 112

Ill. 2d at 86), the defendant argues that the inability of a

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No. 1-09-1001

defendant to objectively demonstrate an intent to provoke a

mistrial behind egregious prosecutorial misconduct should not

foreclose the protection afforded by the double jeopardy clause

of the Illinois Constitution when egregious prosecutorial

misconduct deprives a defendant from obtaining a fair verdict

from "the first trier of fact." Ramirez, 114 Ill. 2d at 129.

The defendant contends the circumstances present in his case

warrant a departure from the federal standard because the
"intentional and systematic misconduct of the prosecutor"

(Griffith, 334 Ill. App. 3d at 119), which "called into question

the State's commitment to fair and just enforcement of the law"

(Griffith, 334 Ill. App. 3d at 119), was so egregious that the

State should be barred from a second opportunity to convict the

defendant. Just as the circumstances present in each of the

decisions issued by the supreme courts of the five states

warranted a departure from the federal standard on double

jeopardy protection, which we cited above, he argues the

circumstances in his case warrant a similar departure by the
courts of Illinois.

The State counters that "none of those broader

interpretations defendant cites, save two, would provide

defendant relief based on the facts of his case." The reasoning

behind the majority of the "broader interpretation" cases is

grounded in prosecutorial intent to engage in misconduct to avoid

an acquittal likely to occur absent the prosecutorial misconduct.

24
No. 1-09-1001

See Wallach, 979 F.2d at 916 ("If any extension of Kennedy beyond

the mistrial context is warranted, it would be a bar to retrial

only where the misconduct of the prosecutor is undertaken, not

simply to prevent an acquittal, but to prevent an acquittal that

the prosecutor believed at the time was likely to occur in the

absence of his misconduct").

The defendant replies that the broader double jeopardy

standard adopted by New Mexico, Arizona, and Oregon would, if
applied, provide relief under the circumstances in his case. At

oral argument he urged that Illinois follow the three-prong

standard adopted by New Mexico: the double jeopardy bar applies

"when [1] improper official conduct is so unfairly prejudicial to

the defendant that it cannot be cured by means short of a

mistrial or motion for a new trial, and [2] if the official knows

that the conduct is improper and prejudicial, and [3] if the

official intends to provoke a mistrial or acts in willful

disregard of the resulting mistrial, retrial, or reversal."

Breit, 1996-NMSC-067, ¶32, 122 N.M. 655, 930 P.2d 792.

The State argued at oral argument that the expanded standard

based on the "denial of a fair trial" premised on misconduct

being so prejudicial as to cause a mistrial or new trial

improperly "conflates" interests protected by the due process

clause standard and the protection afforded by the double

jeopardy clause.

25
No. 1-09-1001

To explain the interests protected by the double jeopardy

clause, "[t]he words of Justice Black are often quoted." Breit,

1996-NMSC-067, ¶9, 122 N.M. 655, 930 P.2d 792.

" 'The underlying idea, one that is

deeply ingrained in at least the Anglo-

American system of jurisprudence, is that 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 found guilty.' " Breit, 1996-NMSC-067,

¶9, 122 N.M. 655, 930 P.2d 792, quoting Green

v. United States, 355 U.S. 184, 187-88, 2 L.

Ed. 2d 199, 204, 78 S. Ct. 221, 223 (1957).

The difficulty this case presents is that while the

prosecutorial misconduct was "intentional and systematic," as we

characterized it on our review on direct appeal, we also

concluded that "no rational jury could have found the defendant

not guilty of felony murder." Griffith, 334 Ill. App. 3d at 119.

In considering the defendant's claim under the double jeopardy

clause, we cannot ignore that a new trial protects the

26
No. 1-09-1001

defendant's constitutional right to a fair trial at stake in this

case. See People v. Bull, 185 Ill. 2d 179, 214, 705 N.E.2d 824

(1998) ("A *** defendant, whether guilty or innocent, is entitled

to a fair, orderly, and impartial trial ***"). We cannot say

that under the unique circumstances in this case, any

embarrassment, expense, and ordeal imposed on the defendant in a

retrial is due to the vast resources and power of the State

rather than the overwhelming evidence of the defendant's guilt.

Nor can we say that the possibility exists that the defendant may

be innocent of felony murder, without meaning to suggest that he

cannot be found "not guilty" on retrial. See Green, 355 U.S. at

187-88, 2 L. Ed. 2d at 204, 78 S. Ct. at 223. In other words, we

fail to see the interests protected by the double jeopardy clause

at stake in this case.

At best, the rights of the defendant to be protected are his

due process rights to a fair trial, which a verdict, flowing from

a fair trial premised on the lawfully admissible evidence free

from any influence of prosecutorial misconduct, will vindicate.
See People v. Blue, 189 Ill. 2d 99, 119-20, 724 N.E.2d 920 (2000)

(retrial ordered against claim that "conduct of State's

prosecutors *** was so improper and abusive that defendant was

denied a fair trial" raising doubt of the constitutionality of

the defendant's trial).

We are compelled to agree with the State. Regardless of the

persuasiveness of the authorities from other states for the

27
No. 1-09-1001

rejection of the federal standard in favor of an expanded

standard for double jeopardy protection, no cited case leads us

to conclude that the interests behind the double jeopardy clause

bar a retrial under the circumstances in the defendant's case,

even if this were a first-impression question for a second-tier

court to decide. See Wallach, 979 F.2d at 916 (defendant's case

does not fall under new double jeopardy standard urged by the

defendant).

The defendant's observation that "[a]n additional five other

states have left open the possibility of a broader standard until

presented with a case *** involving appropriate facts that could

potentially trigger the broader protections" adds little to his

argument that his case, in light of the "evidence at trial

overwhelmingly in favor of conviction" (Griffith, No. 1-03-0713,

slip op. at 7), presents a case for such consideration in

Illinois. See United States v. Doyle, 121 F.3d 1078, 1086 (7th

Cir. 1997) (" '[I]t is the right to appeal, not the double

jeopardy clause, that protects defendants from trial errors ....
The double jeopardy clause serves not to punish prosecutorial

misconduct; it simply ensures that the defendant, not the

government, gets to choose whether to go to verdict' "), quoting

Beringer v. Sheahan, 934 F.2d 110, 113 (7th Cir. 1991). We are

unpersuaded that society's interest in punishing "one whose guilt

is clear" (United States v. Tateo, 377 U.S. 463, 466, 12 L. Ed.

2d 448, 451, 84 S. Ct. 1587, 1589 (1964)), based on lawfully

28
No. 1-09-1001

admitted evidence at trial, should be forfeited by the egregious

misconduct of a rogue prosecutor. Griffith, 334 Ill. App. 3d at

119 ("no rational jury could have found the defendant not guilty

of felony murder").

Under the current state of Illinois law, the only relief the

defendant can claim, even in the face of a clear showing of

egregious prosecutorial misconduct, is that which the federal

district court provided: a new trial. See Blue, 189 Ill. 2d at
139 ("regardless of the weight of the evidence, as guardians of

constitutional rights and the integrity of the criminal justice

system, we must order a new trial when, as here, we conclude the

defendant did not receive a fair trial" (where errors created a

pervasive pattern of unfair prejudice to defendant's case)).

Due Process

In the alternative, the defendant contends his case should

be dismissed on due process grounds. The basis for this

interlocutory appeal, however, is Supreme Court Rule 604(f). 210

Ill. 2d R. 604(f). The defendant concedes in his reply brief

"that Illinois Supreme Court Rule 604(f) limits the ground for an

interlocutory appeal to issues of Double Jeopardy." We cannot

accept the defendant's contention that the interest of judicial

economy, which forms the basis for his contention that we should

address this claim now, should trump express language in Supreme

Court Rule 604(f) that grants interlocutory review to only his

29
No. 1-09-1001

double jeopardy claim. See People ex rel. City of Chicago v.

Hollins, 368 Ill. App. 3d 934, 941, 859 N.E.2d 253 (2006) ("The

scope of review of an order in a Rule 604(f) appeal is limited to

a former jeopardy analysis ***").

CONCLUSION

The opinions of the various courts that have reviewed the

defendant's 1999 murder trial have amply demonstrated the

egregious misconduct engaged in by the lead prosecutor. We are

bound, however, by precedent of our supreme court that the

federal standard under Illinois caselaw requires the prosecutor's

intent behind her misconduct be to "goad" the defendant into

seeking a mistrial to trigger double jeopardy protection. As the

defendant concedes, no such intent can be objectively established

under the facts of this case. Under well-established precedent,

the double jeopardy clause under the Illinois Constitution does

not preclude the defendant's retrial. Nor is his due process

claim subject to review in this interlocutory appeal.

We affirm.

CAHILL and MCBRIDE, JJ., concur.

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No. 1-09-1001

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
EVAN GRIFFITH,
Defendant-Appellant.
________________________________________________________________
No. 1-09-1001

Appellate Court of Illinois
First District, Sixth Division

Filed: September 30, 2010
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
CAHILL and McBRIDE, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable John J. Fleming, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Anita Alvarez
APPELLEE State's Attorney, County of Cook
Alan J. Spellberg
Susan R. Schierl Sullivan
Marci Jacobs
Assistant State's Attorneys, Of Counsel
Richard J. Daley Center, Room 309
Chicago, IL 60602

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No. 1-09-1001

For DEFENDANT- Jeffrey D. Colman
APPELLANT Justin A. Houppert
Jenner & Block LLP
353 North Clark St.
Chicago, IL 60654

32