with whom Associate Judge HARRIS concurs, concurring in the result:
I remain of the view that those who see prosecutorial misconduct in this case are straining with hindsight to find it. That any government attorney would consciously believe that his case could be helped by what occurred in the Jamison matter is inherently incredible. Indeed, when this case was first before the trial court, no one had the transcript of the Jamison proceedings and no one knew, as we now know, what the officer said to the juror. See the original majority opinion in United States v. Harvey, D.C.App., 377 A.2d 411, 412 n.l (1977). I also cannot deem rational any conclusion of misconduct by reason of negligence rather than design.
It also seems to me that our limited resources are being wasted by resolving this case en banc now that United States v. Scott, - U.S. -, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), has been decided. The case should have been returned to the division as Scott deprives it of any en banc issue under Rule 40(c) of the Rules of this court. Surely whether there was prosecuto-rial misconduct in this atypical situation is hardly a “question of exceptional importance” or one of decisional uniformity under that Rule. I question whether inertia has not replaced reason when the suggestion to return the case to the division for disposition was rejected in favor of the perfunctory per curiam opinion.
To the extent that the per curiam decision expresses an opinion of the court that we somehow might have supervisory power, horse-backed on the double jeopardy clause, to bar retrial for “some level of prosecutorial misconduct short of that sufficient to *1052trigger the double jeopardy bar,” I must respectfully disagree. The exercise of supervisory power is to be sparingly used. Its use is to be limited to broad rules of general policy — not to correct unique and nonrecurring problems. If jeopardy previously has attached so as to bar retrial, we readily may say so purely as a legal proposition. We do not have the right in the name of the unprincipled concept of what we may think is “bad” to cart out a constitutional principle — itself of flexible meaning and application 1 — and, by putting the two in combination, hold something to be error which does not actually constitute constitutional error.