dissenting.
There are several points in the majority opinion with which I am in full agreement: that the grant of a mistrial was proper; that the Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), issue is not properly before this court; that the standard to be applied by a trial court in deciding whether a retrial is barred after a mistrial is the standard enunciated in Oregon v. Kennedy, 456 U. S. 667, 679 (102 SC 2083, 72 LE2d 416) (1982) (“the conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial”); and that the prosecutorial overreaching and harassment found by the trial court (impermissible use of peremptory strikes and efforts to persuade appellee’s husband to convince her to plead guilty) are not alone sufficient to support a plea of *56double jeopardy. I cannot agree, however, that all of the prosecutor’s misconduct should not be considered on the issue of double jeopardy, or that there was no evidence of intent to provoke a mistrial.
It is appropriate to begin this discussion with a consideration of the proper role of a prosecuting attorney. “Judges have previously outlined the spirit of [a prosecuting attorney’s] duty by stating: ‘While the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of the charges against them.’ [Cit.] ‘While a [prosecuting attorney] is necessarily a partisan, yet it is his paramount duty “to subserve public justice” [Cit.], and not merely to convict each defendant charged with a violation of the laws of this State.’ [Cits.]” Brown v. State, 118 Ga. App. 617, 619 (165 SE2d 185) (1968). We cannot tolerate a prosecutorial attitude of “win at any cost,” an attitude encouraged by the knowledge that the worst result likely will be a mistrial followed by another opportunity to employ the same reckless abandon which led to the mistrial.
The logical consequence of such purposeful misbehavior is that the prosecutor not be permitted another chance to prosecute that particular case, but with so subjective a standard as the intent of the prosecuting attorney to provoke a mistrial, such a result is difficult to reach: it cannot reasonably be expected that a prosecuting attorney will admit that the specific intent of particular conduct was to cause a mistrial. Indeed, in the present case, the prosecuting attorney expressly disclaimed such intent. Nonetheless, the trial court found against that prosecuting attorney on several other issues concerning which he denied impropriety, and I believe there was ample evidence to permit the trial court to reach a finding contrary to the prosecuting attorney’s protestations on the issue of intent as well.
I recognize that intent is to be inferred from objective facts and circumstances (Oregon v. Kennedy, supra), and agree with the majority that the rationale or justification advanced by the prosecuting attorney is relevant to the issue of intent. That justification cannot, however, be considered to be controlling. We must not tie the hands of our trial judges by restricting unduly their consideration of all the prosecuting attorney’s actions in determining whether it can be inferred that the conduct of the prosecuting attorney was intended to provoke a mistrial; we must permit them to consider on that issue the totality of the circumstances involving the prosecution of the case and the prosecuting attorney’s conduct with relation thereto.
Such a consideration in this case warrants the inference that the prosecuting attorney’s intent was to employ tactics which, if permitted, would tip the scales of justice inexorably toward conviction and, if not permitted, would provoke a meritorious motion for mistrial by the defendant, leaving the way clear for a retrial.
*57The majority’s analysis, that since there was no conclusive evidence that the State was losing, there could be no intent to cause a mistrial, places an unbearable burden on the trial court and shifts attention away from what should be the primary focus in an inquiry such as this, the conduct of the trial by the prosecuting attorney. The burden that would be placed on a trial court attempting to employ the analysis used by the majority would be to weigh the evidence presented and decide which side was going to win, or to attempt to emulate the prosecuting attorney’s thought process and decide whether the prosecuting attorney thought the jury would convict or acquit. Such an effort is not feasible and should not be required of our trial judges.
The focus, instead, should be on the course of conduct in which the prosecuting attorney has engaged. Where, as here, the prosecuting attorney has persistently employed objectionable and illegal tactics, such as the racially motivated use of peremptory strikes, efforts to undermine the defense by attempting to influence the defendant’s husband, and a flagrant disregard of the trial court’s evidentiary ruling, it may fairly be inferred that the conduct was intended to provoke a mistrial.
The majority’s approach to the present case, finding no motive for causing a mistrial and accepting the prosecuting attorney’s self-serving assertion that he did not intend to cause a mistrial, ignores the fact that the trial judge was present for the trial and for the hearing on appellee’s plea of double jeopardy, and had an opportunity to see and hear the conduct of the trial. Worse, perhaps, is the undermining of the trial judge’s authority by the majority’s finding that the prosecuting attorney’s blatant disregard of a ruling because he disagreed with it was done in good faith.
I believe it is our duty to provide the trial judges of this State with the means of curbing prosecutorial misconduct. That will be done by affirming the decision of the trial court in this case, a decision set out in an order reflecting careful consideration of the totality of the circumstances and a due regard for the right of defendants in criminal cases to receive a fair trial. To reverse this decision sends a clear message to the prosecuting attorneys of this State that they are free to employ Machiavellian tactics, and to the trial courts of this State that their hands are tied.
Because I cannot participate in the sending of such a dangerous message, I must dissent from the judgment of reversal in this case.
I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this dissent.
*58Decided July 11, 1988 Rehearing denied July 27, 1988 Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellant. Kenneth D. Kondritzer, for appellee.