concurring.
In Whitton v. State, 479 P.2d 302 (Alaska 1970), the Alaska Supreme Court plainly expressed its view that the double jeopardy clause of the Alaska Constitution, article 1, § 9, must be interpreted flexibly and realistically:
We respectfully disagree with Justice Frankfurter’s view that double jeopardy is not an evolving concept as due process is. What in fact today is “jeopardy” as it relates to a criminal offense, according to the existing common understanding of the term, may not have been even contemplated at the time the federal constitutional provision was adopted, or for that matter, the Alaska constitutional provision. Our constitution, at least in its Declaration of Rights in Article 1 where the prohibition against double jeopardy is found, is not static. It is a viable, active thing, designed to serve the needs of humanity and society with the ability to accommodate to changes which inevitably occur with the progress of our civilization.
Whitton, 479 P.2d at 310 (footnotes omitted).
I agree with Judge Singleton that Model Penal Code § 1.07(2) incorporates a flexible and realistic approach that will provide a suitable analytical framework for resolving most, if not all, double jeopardy claims involving serial prosecutions. Accordingly, I join in Judge Singleton’s decision to adopt the Model Penal Code approach. Application of the Model Penal Code to this case yields the conclusion that Williams’ repros-ecution is barred by Alaska’s constitutional guarantee against double jeopardy.1
. I would alternatively conclude that under the circumstances of this case Williams’ reprosecu- ’ tion should be barred by the Alaska Constitution’s due process guarantee. Cf., Atchak v. State, 640 P.2d 135 (Alaska App.1981). Article 1, § 7, of the Alaska Constitution provides:
No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.