concurring:
I join the judgment of the Court. I must, however, respectfully demur to the attendant dicta, for I see the majority opinion tilting at windmills. Were the dragon it perceives real, I would enlist at the barricades within the hour. I take issue not with its response to the imagined hazard but with its very perception that the hazard is there.
At the outset, let the entire tempest be viewed in the realistic perspective of the teapot wherein we thunder. My dicta differs with the majority’s dicta in our respective interpretations of the dicta of Judge Orth in Bell v. State, 286 Md. 193 (1979), wherein he interpreted the dicta of the Supreme Court in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); and United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Why have all three courts never issued a square holding on the problem of “overreaching”? Because we are dealing with a subtle distinction wrapped in a mere nuance surrounding a metaphysical nicety. Yet the effort is commendable for the dicta involved, at all of these levels, is no mere passing turn of phrase but considered and thoughtful analysis. This is such stuff as doctrine is made of, as opposed to mere case-by-case ad hocery. Indeed, the judgment of comparative jurisprudence has been that the Anglo-American common law has been too prone just to decide cases and not resolute enough at building an internally consistent body of doctrine. I therefore applaud the effort of the majority, with which I disagree, even as I applaud the effort of Judge Orth, with which I wholeheartedly agree. And so, to the disagreement.
*431Let us begin with the recognition that every appellate reversal of a conviction, properly granted, is predicated upon a finding of error. Most declarations of mistrial, properly granted, are predicated upon a finding of error. In both instances, the error has been prejudicial to the defendant; that is, more than harmless. The behavior by prosecutor or judge, moreover, which is deemed erroneous has been, 99% of the time, advertent and not accidental. There is, therefore, nothing talismanic in talking about “intentional conduct by prosecutor or judge denying a defendant due process of law.” The normal remedy for such error — of a quality eroding the right of a defendant to a fair trial and, thereby, depriving him of constitutional due process of law — is the affording to him of a new trial, hopefully free of error and hopefully reaching a proper verdict upon the merits. The sanction applied to an error-ridden trial is to wipe it out and begin again. The far more extreme sanction, available only in the mistrial-retrial context, of wiping it out and sometimes not beginning again is of an entirely different order and is not aimed at the correction of simply intentional trial conduct which is determined to have been erroneous. The majority and I are both agreed on this. I do not read Judge Orth as retreating from this. The majority apparently does.
One small corner of the crowded double jeopardy field is that dealing with the permissibility of a retrial following the declaration of a mistrial. This concern was not historically a part of double jeopardy law at all but a separate common law tradition, guarding the right of the defendant to stay with a tribunal until a verdict had been rendered. Over the years, this distinct procedural protection was engrafted uncritically upon the constitutional law of double jeopardy. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (dissenting opinion by Powell, J.). That misbegotten merger is the source of much latter-day confusion.
When a mistrial is declared upon the motion of the State or by the court sua sponte, over the objection or without the consent of the defendant, a retrial will be barred unless there was a manifest necessity for the declaration of the mistrial. A substantial body of laws now exists as to this aspect of the *432mistrial-retrial problem. A less explored aspect of the problem is that governing the situations where the mistrial has been declared at the request of, or with the consent of, the defendant. Ordinarily, such request or consent would operate as an essential waiver of any subsequent double jeopardy claim. Solely by way of dicta, the Supreme Court has indicated that a limitation upon this foreclosure would be the situation wherein the defendant was left with no real choice in the matter because of “prosecutorial or judicial overreaching.” This dicta has generated the discussion now in issue as to what is precisely the “prosecutorial or judicial overreaching” that will bar a retrial following the declaration of a mistrial at the request of a defendant.
The answer can only be found within the context of the interest being guarded by this distinct body of procedural protection. That interest is not the protection of the defendant from an erroneous conviction. An appellate reversal following conviction or a declaration of mistrial, either followed by a permitted retrial, has traditionally safeguarded defendants from erroneous convictions. The very different interest guarded by this particular common law tradition has been the défendant’s option to stay with a tribunal which may be favorably disposed to his cause and not to have the State deliberately abort a trial which the State senses is going badly. It is not the harmful effect of an error as such but rather the peculiar mens rea with which the error is committed which is of overriding significance in this context.
The sensitivity to this distinction was what led this Court in Tabbs v. State, 43 Md. App. 20, 403 A.2d 796 (1979), and in Bell v. State, 41 Md. App. 89, 395 A.3d 1200 (1979), to lay to rest the ghost of the notion that gross negligence on the part of prosecutor or judge could ever constitute such overreaching. The Court of Appeals expressly affirmed this conclusion in Bell v. State, supra. In his opinion for the Court of Appeals, Judge Orth made it very clear that only intentional conduct can qualify as overreaching. Thus far, everyone seems to be in agreement. The metaphysical nicety has been handled with aplomb.
We move to the. subtle distinction within the metaphysical *433nicety. What is the quality of intent which makes the commission of error “intentional” within this particular context. It is not the mere intentional doing of the trial action, which action is later ruled to have been erroneous. That is the mere general intent to do the deed. The general intent to do the action, which is later determined to be a foul, is almost always present. Inflammatory jury arguments are intentionally spoken and are not mere Freudian slips of the tongue. Prejudicial questions or the introduction of tainted evidence represent conscious and intended actions. The law of “overreaching,” on the other hand, contemplates a specific intent above and beyond the mere general intent. It involves not the mere intentional striking of a blow which turns out to be a “foul” but rather the intentional and deliberate commission of a “foul”, knowing it to be such. To be guilty of “bad faith,” one must have the specific intent deliberately to commit error and not simply the general intent deliberately to do an action which is determined to be error. This is my reading of the law and it is my reading of what Judge Orth said in Bell. I believe that the majority has failed to perceive that Judge Orth is steadfast in this regard because it has misread the nuance yet to be discussed as an erosion of this position and not a mere nuance upon it. On, therefore, to the nuance upon this subtle distinction!
All are agreed that the ancient evil giving birth to this body of law, and the present evil still being guarded against, is the effort on the part of government to sabotage a trial which is going badly in order to improve its chances for conviction upon some later occasion. In our earlier efforts to articulate this in Bell and Tabbs, we failed to distinguish between the specific intent to sabotage the trial which was going badly and the mere mechanism by which that sabotage was to be accomplished. We spoke of the necessity, for “overreaching” purposes, of the prosecutor or judge deliberately sabotaging the trial with the hope of forcing the defendant to ask for a mistrial. Judge Orth has gone us one better by adding the refinement that the mechanisms of sabotage may be plural. The specific intent must still be to sabotage the trial by committing a deliberate foul. Once having done that, the *434prosecutor or the judge may be wantonly indifferent to whether 1) the defendant requests and obtains a mistrial or 2) the trial goes forward and the prosecution obtains a victory it could not have obtained but for the deliberate foul. The foul has accomplished its purpose by either means. This is all I perceive the refinement to be. I believe the majority reads it overbroadly to be an erosion of the specific intent to sabotage a doubtful trial.
I also believe that the majority's concern with the analogy between the retrial-following-mistrial situation and the retrial-following-appellate-reversal situation stems from our ill-advised effort to cram two divergent legal traditions into a single Procrustean mold. When a defendant is forced by overreaching to request a mistrial and the mistrial is declared, his right to stay with that tribunal has been infringed. When, upon the other hand, the trial has gone full term, even when a mistrial has been requested and erroneously denied, different considerations obtain. The right to stay with the original tribunal was not infringed, even if under the circumstances it should have been. The appellate review of the conviction looks at the error in terms of its impact upon the ultimate verdict and does not look at the now-moot question of whether the mistrial which was not granted should have been granted. In that context, we are governed by the philosophy of United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), and the law according to Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).