¶ 94. (dissenting). The supreme court is a law-defining, law-developing court. Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (citing State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 229-30, 340 N.W.2d 460 (1983)). In this capacity it is expected to address "real and significant" questions of federal and state constitutional law. Wis. Stat. § (Rule) 809.62(1)(a) (2003-04).1 But the court acts only to resolve actual controversies. It was not designed to announce principles of law beyond the *315facts of a particular case or to render advisory opinions. State v. Robertson, 2003 WI App 84, ¶ 32, 263 Wis. 2d 349, 661 N.W.2d 105 (citing State ex rel. Ellenburg v. Gagnon, 76 Wis. 2d 532, 535, 251 N.W.2d 773 (1977)); State v. Witkowski, 163 Wis. 2d 985, 988, 473 N.W.2d 512 (Ct. App. 1991). Thus, the court's legal pronouncements must be tied to the facts in a case as they are, not as the court might like them to be.
¶ 95. The present case is extremely troubling because the court appears more interested in announcing principles of constitutional law than in wrestling with inconvenient facts. As a result, the court ends up making unsupported assumptions, misconstruing facts, ignoring ugly realities, denigrating the work of honorable people, and ultimately reaching a flawed conclusion. For all these reasons, I respectfully dissent.
FACTUAL BACKGROUND
¶ 96. This case involves an alleged series of sexual assaults by Richard A. Moeck, then 49, against C.S., a 23-year-old male, in the early morning hours of August 2, 1997. C.S. claimed that Moeck induced him to come up to Moeck's apartment for a drink and then threatened to kill him with a 12-inch knife if he did not disrobe and submit to multiple degrading assaults. C.S. asserted that he was held hostage for more than four hours and was threatened, slapped, repeatedly assaulted, and robbed.
¶ 97. Moeck was charged with a number of offenses, including two counts of first-degree sexual assault, one count of false imprisonment, one count of robbery, and one count of intimidation of a witness.
¶ 98. The case has been tried four times. The first trial in January 1998 ended in a hung jury. The second *316trial in March 1998 resulted in conviction on five counts. These convictions were subsequently reversed by the court of appeals.
¶ 99. The third trial in March 2000 is the subject of this review. As the majority correctly states, the circuit court granted the State's motion for mistrial at the close of the evidence. Majority op., ¶ 9. The fourth trial in November 2000 again resulted in conviction of the defendant on five counts.
¶ 100. Moeck had a long criminal history dating back to 1960. He had numerous convictions including felonies. Some of his prior offenses had similarity to the alleged offenses against C.S. Thus, when Moeck testified in his own defense, he was subject to cross-examination and devastating impeachment.
¶ 101. Moeck testified at the first trial and acknowledged in direct examination that he had been convicted of a crime six times. The prosecutor did not refer to this admission in her cross-examination or her closing argument. This is the trial that ended in a hung jury.
¶ 102. Moeck also testified at his second trial. Again he acknowledged in direct examination that he had been convicted of six crimes and also admitted that he had been less than truthful to a law enforcement officer during an incident in Green County. At this second trial, the prosecutor emphasized both of Moeck's admissions in cross-examination and in her closing argument. In her closing, she said: "When you talk about a motive to lie, well, the defendant has been convicted of six crimes in the past and he also has admitted that he has given false information to police in the past."
¶ 103. By the time of the third trial, the State had accumulated more damaging information about Moeck *317through a presentence investigation (PSI).2 For example, District Attorney Scott Horne used information from the PSI at the sentencing hearing after the second trial. He told the court that in one incident in Florida, Moeck had "assaulted a victim with a weapon, took his wallet and tied him to a tree." In another incident in Illinois in 1993, Moeck invaded a home "while masked, slapped a woman, ultimately stabbed her in the hand and leg." Moeck had threatened a range of people, from his former wife to police officers and court personnel.
¶ 104. The case against Moeck was complicated by the fact that C.S. also had criminal convictions (five at the time of the third trial) as well as some inconsistencies in his prior testimony. Thus, the pivotal issue for the jury was the credibility of the victim versus the credibility of the defendant. Moeck's attorney at the third trial, Timothy Gaskell, acknowledged as much when he wrote: "The thrust of the case has always been whether the alleged victim ... is a credible witness."
¶ 105. These dynamics were fully understood by the defendant, his attorney, the prosecutor, and the court at the opening of the third trial. Attorney Gaskell, *318who replaced Attorney Fabio Burgos after Moeck fired him, gave an opening statement in which he presented the defendant's entire account of events, but then offered no evidence to support his story. The defendant did not testify, as he had before, and thereby escaped the cross-examination and impeachment he had faced in the first two trials. Gaskell also stressed in his opening that C.S. had been inconsistent in his prior testimony but that Moeck's account had not varied when he testified.
¶ 106. The court granted the State's motion for a mistrial after the defendant failed to produce evidence to corroborate the opening statement and after the State contended that it could not neutralize the prejudice it had suffered by cautionary instructions and closing argument. This discretionary decision by the circuit court was twice affirmed by the court of appeals, before it was reversed.
¶ 107. The legal issues now before the court cannot be separated from these background facts. The circuit court had a complete grasp of these background facts and was aware from personal observation that the defendant's personality changed dramatically when the jury was not present.3
LAW OF THE CASE
¶ 108. The first issue concerns the law of the case doctrine. The majority explains that the law of the case doctrine is a "longstanding rule that a decision on a *319legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Majority op., ¶ 18 (quoting Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989)). Nevertheless, the law of the case doctrine is not an absolute rule. Majority op., ¶ 25. It can be set aside in the interests of justice "whenever cogent, substantial, and proper reasons exist." McGovern v. Eckhart, 200 Wis. 64, 75, 78, 227 N.W. 300 (1929).
¶ 109. The majority opinion conveys the impression that the court of appeals considered this issue only once prior to its decision in the present appeal. Majority op., ¶¶ 26-28. In reality, though, the court of appeals twice affirmed La Crosse County Circuit Judge Dennis Montabon's decision to grant the State a mistrial in Moeck's third trial. The court of appeals initially considered Moeck's argument in September 2000 when, shortly before the fourth trial, the defendant moved to dismiss the case on double jeopardy grounds. When his motion was denied by Judge Montabon, the defendant sought an appeal of the court's nonfinal order. Majority op., ¶ 11.
¶ 110. In his petition to the court of appeals, Attorney Gaskell attached several documents. The documents included a 3-page excerpt of his opening statement and the complete 11-page transcript of the instructions conference. This short transcript contained the entire discussion of the State's motion for mistrial.
¶ 111. In this appeal, Assistant Attorney General James M. Freimuth repeatedly referred to the discussion at the instructions conference and cited pages from the defendant's petition and attached documents. Fre-imuth concluded, on page 18 of his Response to Petition For Leave to Appeal, that "the excerpt of the record *320provided by defendant in the present case fully supports the trial court's exercise of discretion in granting the State's motion for mistrial based on defense misconduct." (Emphasis added.)
¶ 112. Upon reviewing these papers, a court of appeals panel consisting of Judges Charles Dykman, William Eich, and Patience Roggensack entered a summary order affirming the circuit court. The order read in part:
[Biased on our review of the petition and the attached documents, we conclude that the State's ... proposal of granting leave to appeal and summarily affirming would best serve the interest of judicial economy. We further conclude that the trial court's memorandum decision and order identifies and applies the proper legal standards to the relevant facts and reaches the correct conclusion. (Emphasis added; citation omitted.)
The court of appeals then attached the circuit court's written decision to its order.
¶ 113. The court of appeals reviewed the same issue again in June 2002. After his conviction at the fourth trial, the defendant filed a petition for a writ of habeas corpus in the court of appeals. The petition challenged the effectiveness of Moeck's counsel in the earlier pretrial interlocutory appeal. Majority op., ¶ 13. Once again, the defendant's papers included the complete transcript of the instructions conference.
¶ 114. A panel consisting of Judges Dykman, Roggensack, and Paul Lundsten entered an order denying the writ. The order read in part:
Moeck petitioned for leave to appeal from the trial court's order permitting a retrial and denying his motion to dismiss the charges, claiming double jeopardy. We granted the petition... but summarily affirmed the trial court's ruling on double jeopardy.
*321In Moeck's present petition he contends that had appellate counsel adequately argued the issue [on the interlocutory appeal], he would have prevailed .... The trial court's decision to allow a retrial was discretionary. This court will summarily affirm an exercise of discretion only if the record is clear that the discretion was properly exercised. See Wisconsin Court of Appeals Internal Operating Procedures, Section VI, Sub. 1. In short, no amount of advocacy would have convinced this court that the trial court unreasonably exercised its discretion. It was clear that the court did not.4 (Emphasis added.)
¶ 115. Moeck then pursued a direct appeal of his conviction and the denial of his post-conviction motion for relief, raising the same double jeopardy issue that the court had decided previously. In this third "appeal," the panel consisted of Judges Dykman, Margaret Verg-eront, and Paul Higginbotham. In its opinion reversing Moeck's conviction on double jeopardy grounds, the court stated:
Prior to his fourth trial, Moeck moved to dismiss the complaint on double jeopardy grounds. The trial court denied the motion in a written opinion. Moeck petitioned this court for leave to appeal. We granted the petition and summarily affirmed, reasoning that the trial court's written opinion "applie[d] the proper legal standard to the relevant facts and reache[d] the correct conclusion." However, we failed to review the transcript showing the trial court's reasoning when it granted the State's request for a mistrial.
*322State v. Moeck, 2004 WI App 47, ¶ 6, 270 Wis. 2d 729, 677 N.W.2d 648 (emphasis added). The court of appeals added:
When we reviewed Moeck's petition for review, we examined Judge Montabon's written order and not his oral decision on the State's motion for a mistrial. Though the two are similar in some respects, the oral decision makes clear that the trial court left the mistrial decision up to the State. The trial court would have given a curative instruction had the State requested that instead of a mistrial. And the court reasoned that the defense counsel's failure to produce evidence promised in opening statement necessitated a mistrial. Had we reviewed the transcript, we would have observed this.
Id., ¶ 21 (emphasis added).
¶ 116. The court's assertion that it did not examine the transcript of the circuit court's oral decision in the first appeal in 2000 is extraordinary. It is an assertion about what Judge Dykman, Judge Eich, and Judge Roggensack considered in reviewing Moeck's interlocutory appeal.
¶ 117. Although the judge who wrote the decision was admittedly a member of all three panels, he was not empowered to write about what Judge Eich and Judge Roggensack thought and considered four years earlier. The other two members of the third panel were not involved in the earlier cases.
¶ 118. There is absolutely no evidence that either Judge Eich or Judge Roggensack has ever confirmed the court's statement that they never considered the short transcript that was before them. The court's 2000 order contradicts the court's 2004 statement because it asserts that the court reviewed the defendant's "petition and attached documents."
*323¶ 119. Moving to this court, the majority opinion states that the cogent, substantial, and proper reason for disregarding the law of the case doctrine is that "[t]he court of appeals had based its prior decisions that the circuit court properly exercised its discretion only on the circuit court's written order." Majority op., ¶ 27. The texts of the two court of appeals orders demonstrate that this is not correct. The majority goes on: "The court of appeals candidly acknowledged . . . that its prior summary order rejecting the defendant's double jeopardy challenges erroneously failed to take into account the circuit court's oral decision to grant a mistrial." Id. Again the majority is not correct. The court of appeals did not make any such representation about its second order.
¶ 120. It is astonishing for this court to assert that Judge Roggensack (twice), Judge Eich, and Judge Lundsten never considered a short transcript that was central to the issue in front of them before they made their decisions, particularly when the court of appeals' summary orders state otherwise and the defendant attached the relevant document to his filings on both occasions. Judge Roggensack should have had an interest in the case because she wrote the opinion reversing Moeck's convictions in the second trial for failure to grant his request for a mistrial.
¶ 121. By affirming the court of appeals, this court is ratifying a dangerous new procedure in which one judge's subjective memory of a transaction that occurred four years earlier is permitted to override the plain language of a contemporary court order. For us to conclude that this questionable procedure constitutes a cogent, substantial, and proper reason for setting aside *324the law of the case is nothing less than a lethal blow to finality in our courts.5
¶ 122. The court of appeals gave an additional reason for disregarding the law of the case doctrine, namely, that "the oral decision makes clear that the trial court left the mistrial decision up to the State." Moeck, 270 Wis. 2d 729, ¶ 21. "The record shows that the trial court allowed the State to determine whether there was manifest necessity to terminate the third trial. Such discretion resides only with the judiciary." Id., ¶ 13.
¶ 123. My reading of the transcript is very different. The third jury trial was conducted on March 15, 2000. Evidence in that trial concluded about 5:30 p.m. Thereafter, the court excused the jury and met in the courtroom with Assistant District Attorney Robyn Ma-tousek, defense attorney Gaskell, and the defendant. In this meeting, the defendant confirmed that he did not wish to testify, and defense counsel requested and was granted an instruction that the defendant had an absolute constitutional right not to testify. This discussion was followed by a short recess.
¶ 124. When the parties returned, the court furnished copies of proposed instructions. The State requested an additional instruction to deal with defense counsel's opening statement. The prosecutor complained vehemently that defense counsel "went through the whole scenario" [of the defendant's account] in his opening statement, including an assertion that the defendant had testified at the previous trials, then failed to present any evidence to corroborate what he had said. "[S]o I think that's completely unethical," the prosecutor argued, "but aside from that, I think that *325there has to be an instruction to the jury that they are to disregard that and not consider any of that portion of the opening statement."
¶ 125. Attorney Gaskell insisted that opening statements are not evidence, and that he had a right to tell a jury what he believed a defendant would say without losing the constitutional right not to put that defendant on the stand.
¶ 126. Judge Montabon disagreed. "You can't tell the jury what the evidence is gonna show and then don't show it," he said. Moments later, the court added: "[I]t seems to me the State is in a bind ... and might well be entitled to a mistrial.6 This is the instruction I propose to try to correct that, hut the State is gonna be in a bind in argument because they can't directly comment on the defendant not testifying." Judge Montabon then suggested the following instruction: "The jury is not to consider any statement of certain facts made in opening statements when such facts were not supported by evidence received during the course of this trial."
¶ 127. The prosecutor immediately responded: "Can I have about five minutes? I would like to confer with [District Attorney] Horne about whether or not I should be asking for a mistrial in this case." Matousek took the judge's proposed instruction with her.
¶ 128. When she returned, Matousek explained that she met with C.S. to determine whether he was willing to go through a fourth trial. He was. "I need to make clear, though, before I make [a] decision to request a mistrial... exactly how far would the Court be allowing me to go as far as statements in a closing *326argument commenting on . . . basically a fictional tale presented in the opening statement. . . and no evidence presented and no effort to present evidence to support that?" She emphasized that she had "every intention" of not being very kind to Attorney Gaskell. "I think I should have the opportunity to ... at least make [the] statement, that a fictional tale was presented .... He's basically slinging mud at a victim without any effort to support his statements."
¶ 129. Gaskell fought back. "Opening statements are not evidence .... If we actually in any way, shape, or form believe that the jury is gonna hang their hat on something that I said ten hours ago, I think that's an absurd notion. They're gonna base it on whether they believe [C.S.] or not." (Emphasis added.)
¶ 130. The court replied: "It's not quite that simple, Mr. Gaskell. They [the jury] have a reasonable alternative in their minds . . . with no evidence whatsoever to support it. Reasonable or not, they have an alternative."
¶ 131. "I haven't had a chance to do any cross-examination," the prosecutor complained. "I can't include that in ... any part of my closing argument as I have in the past two trials."
¶ 132. In further discussion, the court opined that the prosecutor could say there was no proof of what defense counsel had said "as long as you don't say... the defendant didn't get up here and tell us that, or words to that effect. . . [I]f you say, the defendant didn't get up here and say this, we will likely be trying it again."
¶ 133. The court added: "I read about [attorney] misconduct [in] opening statements. It's clear[,] I think[,] that the Court can grant a mistrial."
*327¶ 134. Attorney Gaskell then appeared to compromise:
Mr. Gaskell: I think if Ms. Matousek — if she wants to argue ... that we didn't present any supporting evidence based on my opening statement, I mean, to move this thing along —
Ms. Matousek: Are you waiving any objection to that?
The Defendant: No.
Mr. Gaskell: As long as —
The Defendant: No. Nope.
Mr. Gaskell: Well, Your Honor, I think you're right, as long as she doesn't say, the defendant didn't get up on the stand and say that — I mean, I think she can say that I indicated that in opening statement and that I didn't present any testimony to back that up or evidence to back that up.
¶ 135. At this point, the record shows open conflict between the defense counsel and the defendant. The defense counsel appears to be making a concession that the defendant is unwilling to make.
The Court: [to the prosecutor] Do you want to go ahead or not? ... [T]he State under the circumstances now would be entitled to a mistrial if they wanted one.
Ms. Matousek: I think I'm gonna ask for a mistrial, Judge. I'm not gonna be able to erase those facts. I can't argue them... in *328my oral argument because I didn't have a chance to cross-examine [the defendant] about it. It's not even out there before the jury.
The Court: Motion for a mistrial is granted.
¶ 136. The transcript shows that the court several times suggested that the State was entitled to a mistrial if the State wanted one. Against this background, the question was whether the State wanted a mistrial or whether it wanted to proceed. Although the State took the position that it had been prejudiced, it unquestionably retained the option whether to go forward or seek a new trial. As a result, it was meaningless for the court of appeals to conclude that "the trial court left the mistrial decision up to the State." Moeck, 270 Wis. 2d 729, ¶ 21. Surely, this court is not holding that when the State has been prejudiced, the court may declare a mistrial even though the State does not want one.
¶ 137. The court of appeals also said that "the trial court allowed the State to determine whether there was manifest necessity to terminate the third trial." Id., ¶ 13. That would be meaningful, but that conclusion is not supported by the record. The State gave reasons why it wanted a mistrial and the court granted the mistrial.
¶ 138. Whether the court made the correct ruling is a different question from whether the court abdicated its discretion to the prosecutor. Two court of appeals decisions concluded that Judge Montabon made the correct decision in granting the State's motion for a mistrial. I see no cogent, substantial, and proper reason based on facts why the court of appeals' prior rulings should not be considered the law of the case. The circuit *329court did not abdicate its discretion; it recognized that the State had options and permitted the State to select an option.
MANIFEST NECESSITY
¶ 139. The majority's decision to disregard the law of the case doctrine makes it necessary to address the second issue, whether the fourth trial violated the defendant's right against double jeopardy because no "manifest necessity" for a mistrial existed after the close of evidence in the third trial. The majority concludes that the State did not meet its burden of showing a "manifest necessity" for terminating the third trial, and, thus, the circuit court erred in granting a mistrial. Majority op., ¶ 80.
¶ 140. Justice Wilcox has authored a powerful dissent, which I join, but there are additional details about the evidence and the majority's opinion that deserve comment.
¶ 141. This case involves a vulnerable victim. At the time of the third trial, C.S. had five criminal convictions and a pattern of making misstatements to law enforcement. His checkered history fully justified a challenge to his credibility, but it did not excuse assaults on his person. The prosecutor acknowledged these problems in her opening statement, and explained that C.S. had to relive the incident in several different testimonies.
¶ 142. The defendant's opening statement was 17 pages in length. As the majority accurately states, the State did not object to the defendant's version of events because it was consistent with Moeck's prior testimony. The State would likely have objected to the substance of the story had it known the defendant would offer no *330evidence to support his narrative. The State's three objections actually reinforced the defendant's story because each one focused on the argumentative nature of counsel's remarks, not the substance of his allegations. The court responded to the objections with comments such as "Tell them what your evidence will show" and "You will have ample opportunity to argue."
¶ 143. The defendant's opening statement told the jury that "the evidence is gonna be significantly different" from the events described in the State's opening, and "here are some of the things that are gonna be significantly different."
¶ 144. Shortly thereafter, defense counsel stated that "[C.S.] has testified ... at previous hearings in this matter. Rich has done the same thing, and the only person in this case that has been consistent with their story and with their testimony is Rich." (Emphasis added.)
¶ 145. This comment distinguishes the present case from most others in which defense counsel makes an improper opening. The State could not dispute the fact that Moeck had testified twice before. This fact, once revealed, was reinforced by every reference to previous trials. It could not be erased by a cautionary instruction and could not be discussed in the prosecutor's closing argument without reminding the jury that the defendant had not testified at this trial. Thus, when the defense attorney relayed Moeck's version of the encounter with C.S., it had much greater credibility than it would have had in an opening at a first trial.
¶ 146. Attorney Gaskell also volunteered that Mo-eck is "a 250-pound construction worker. He's been married twice before. He's got three children and those *331marriages lasted approximately 17 years."7 Moments later he skillfully contrasted this uncontested information with the statement that, "You're not gonna hear any evidence in regards to any kind of homosexual activity or any homosexual materials that were either found in Rich's apartment or nobody else is gonna come up here and say, 'yeah .. . Rich Moeck's a homosexual.' There's ... gonna be no evidence in regards to that."
¶ 147. Attorney Gaskell's prediction proved to be correct. Because he was familiar with the first two trials, Gaskell was able to effectively demolish a straw man (which the jury would have noted), present the defendant's story of the incident, and avoid any cross-examination or impeachment of the defendant.
¶ 148. When Gaskell repeatedly argued that "the only person in this case that has been consistent with their story and with their testimony is Rich," however, he was not being completely candid. One example illustrates the point.
¶ 149. At the first trial, Moeck contended that he met C.S. at Kenny's Pub, a tavern in La Crosse, that he and C.S. were drinking at the bar, that C.S. asked Moeck if he wanted to go outside in the back of the tavern and smoke a joint. They did, according to the story, and Moeck told C.S. that he might want to buy some pot once in a while. "After we got to talking, I told him where I lived and that's how he knew where I lived." Moeck provided this background as his explanation for how and why C.S. knocked on his apartment door at 3:09 on a Saturday morning.
*332¶ 150. On cross-examination, the prosecutor attacked the plausibility of this story and obtained a concession that C.S. did not write down Moeck's address. Moeck also said he lived in one of several apartments above Spanky's Tavern. In closing argument, the prosecutor declared:
[Y]ou hear from the defendant that he had met [C.S.] about a month before, [had a conversation with him] in a bar . .. told him that he lived up above Spanky's and a month later after having no other contact with him, [C.S.] comes to the defendant's apartment. How [C.S.] knew which apartment it was when there are four or five different apartments on that particular floor is beyond me. Maybe he went knocking at all different ones at 3 in the morning, but I think it's pretty farfetched to believe that [C.S.] knew exactly which apartment to go to to try to sell this marijuana to the defendant. [C.S.] didn't even remember exactly what apartment number it was when he testified on the stand.. .. [W]e're to believe that [C.S.] was able to remember, not only that but he was able to remember and locate the defendant after having had two hits of LSD and so he's supposed to be able to find his way to an apartment that he's never been to. (Emphasis added.)
¶ 151. In the second trial, Moeck headed off part of this attack on his credibility by "remembering" new facts:
Q: And when you described where you lived, how did you put that to him?
A: Well, I told him what door to go in. He knew where Spanky's was, so I told him what door to go in, right next door to Spanky's, and to go up to the first floor and my apartment was the last one on the left. (Emphasis added.)
*333¶ 152. On cross-examination, he volunteered this information:
Q: Did you see [C.S.j write down the information about where you lived?
A: No, but I told him how to get to my apartment.
¶ 153. If the defendant had been subject to cross-examination, the implausibility and inconsistency in his testimony would have been exposed. That, of course, never happened. Instead, Attorney Gaskell was able to spend 13 pages of his opening statement on discrepancies and inconsistencies in the victim's testimony and then followed that up with vigorous cross-examination of the victim at trial.
¶ 154. Attacking the credibility of a victim's testimony is a legitimate trial tactic. Telling the defendant's side of the story in an opening statement, then failing to corroborate a word of that story with testimony is not legitimate, especially when the story escapes all adversary challenge at trial.
¶ 155. The "central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). "To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another." United States v. Robinson, 485 U.S. 25, 33 (1988).
¶ 156. These principles were foreshadowed in Arizona v. Washington, 434 U.S. 497 (1978), a case involving an improper opening statement by defense counsel. Washington is discussed extensively by the majority and the dissent of Justice Wilcox. However, the majority opinion downplays the deference the Washington Court said ought to be given to a circuit court's exercise of *334discretion in granting a mistrial in these circumstances. The Washington Court said:
[T]he trial judge ordered a mistrial because the defendant's lawyer made improper and prejudicial remarks during his opening statement to the jury.
We recognize that the extent of the possible bias [affecting the impartiality of the jury] cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation, that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment.... [This] actionf ], however, will not necessarily remove the risk of bias that may be created by improper argument. .. . [T]he trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred. The adoption of a stringent standard of *335appellate review in this area ... would seriously impede the trial judge in the proper performance of his "duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop ... professional misconduct" (citing United States v. Dinitz, 424 U.S. 600, 612 (1976)).
Washington, 434 U.S. at 510-513 (emphasis added).
¶ 157. The Court acknowledged that a trial judge was required to exercise sound discretion in declaring a mistrial, id. at 514, but Justice Stevens, writing for the Court, indicated that this meant not acting "irrationally or irresponsibly," as opposed to going through a long checklist of inquiries and alternatives as the prerequisite for establishing sound discretion. Id. "Neither party has a right to have his case decided by a jury which may be tainted by bias." Id. at 516. "The state trial judge's mistrial declaration is not subject to collateral attack . .. simply because he failed to find 'manifest necessity' in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion." Id. at 517 (emphasis added).
¶ 158. The majority appears to interpret State v. Seefeldt, 2003 WI 47, 261 Wis. 2d 383, 661 N.W.2d 822, as creating a checklist for establishing sound discretion and a stringent standard of review. This is unwarranted. Seefeldt was decided on less egregious facts than the present case, in circumstances more amenable to corrective action and cautionary instruction. Seefeldt was also grounded in Washington and State v. Barthels, 174 Wis. 2d 173, 184, 495 N.W.2d 341 (1993). It should not be reinterpreted here to establish new requirements that did not exist five years ago.
¶ 159. In Washington, the Court started with the premise that defense counsel's comment in the opening statement was not proper. Washington, 434 U.S. at 511. *336By contrast, the majority in the present case starts with the proposition that the opening statement was proper when delivered. To support this proposition, the majority makes the following statements:
1. "The defendant's decision not to testify was apparently made at the close of the State's evidence." Majority op., ¶ 49 (emphasis added).
2. "The defendant and his counsel apparently were confident that the State had failed to meet its burden of proof." Id. (emphasis added).
3. "As a result, the defendant did not present any evidence to substantiate defense counsel's opening statement of the defendant's version of the events." Id. (emphasis added).
4. "Defense counsel explained that he could not know when making his opening statement that the defendant would opt not to testify, especially given that the defendant had testified at two earlier trials conducted by another defense attorney." Id., ¶ 51.
5. "Defense counsel asserted that he expected the defendant to testify (as the defendant had in prior trials), but he did not know in fact whether the defendant would testify." Id., ¶ 65.
¶ 160. The problem with these statements is that the first three are pure speculation and the last two are not substantiated by the record. At no point in the instructions conference did defense counsel make a statement that he expected the defendant to testify. In fact, at no point in his 17-page opening statement did counsel say words such as "Rich Moeck will testify that. .. ," whereas he did make such statements about C.S. and about a La Crosse police officer. The defendant's opening statement is so carefully con*337structed and so detailed in its recitation of the victim's inconsistencies that it is hard to imagine that defense counsel was oblivious to whether the defendant would testify. When counsel was accused to his face by the prosecutor of being unethical, he answered with generalities, not specifics.
¶ 161. If defense counsel actually expected the defendant to testify, he may have been misled by the defendant himself. The defendant spoke up personally when the prosecutor asked if the defense was waiving any objection to a pointed closing argument about the failure of the defense to produce evidence.
Ms. Matousek: Are you waiving any objection to that?
The Defendant: No.
Mr. Gaskell: As long as —
The defendant. No. Nope.
¶ 162. This blunt exchange is reminiscent of a colloquy that occurred at a sentencing hearing after the second trial when the defendant fired his first attorney:
The Court: You don't wish to have Mr. Burgos represent you?
The Defendant: Nope.
The Court: Do you want another lawyer —
The Defendant: Nope.
The Court: — to represent you?
The Defendant: Nope.
¶ 163. Shortly thereafter, the defendant attempted to prevent the district attorney from speaking. "Nope, he can't say nothing. He ain't got nothing to say." *338Eventually, the court removed the defendant from the courtroom for vulgarity, shouting, and disruption.8
¶ 164. Thus, there is good reason to dispute the majority's position that the defendant's opening statement was proper when it was delivered.9 The State persuasively argues that the defendant's opening was "a textbook example of how not to present an opening statement to the jury." It quotes the late Chief Justice Warren Burger that:
An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.
United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring).
*339¶ 165. There is real danger that the court is rewriting the rules of what is acceptable comment in an opening statement and how a trial judge may respond to counsel error. The majority concludes that "the circuit court did not exercise sound discretion in declaring a mistrial when it failed to give adequate consideration to the State's ability to refer to the defendant's silence and to the effectiveness of a curative jury instruction." Majority op., ¶ 71. It asserts that the circuit court's belief that a response in closing argument and a curative jury instruction would not rectify the prejudice to the state was "unfounded." Id.
¶ 166. Taking these points in reverse order, the court suggests that "a curative jury instruction that opening and closing statements are arguments, not evidence, would have cured any possible prejudice resulting from defense counsel's opening statement." Id., ¶ 79. This determination seriously miscalculates the extraordinary circumstances of this case.
¶ 167. The notion of a cautionary instruction must be put in context. Before the State and defense counsel gave opening statements in this case, the court addressed the jury, saying:
The State must prove every fact necessary to find the defendant guilty. The State must prove those facts through evidence. There are two kinds of evidence. First, there is what the witnesses say on the witness stand. Second, there are exhibits which are received into evidence. The arguments of the lawyers are not evidence.
In considering your verdict, disregard everything except the evidence received during this trial and the law contained in my instructions. (Emphasis added.)
*340¶ 168. At the close of some trials, the court gives Wis JI — Criminal 157, "Remarks of Counsel" which reads in part: "Remarks of the attorneys are not evidence. If the remarks suggested certain facts not in evidence, disregard the suggestion." Attorney Gaskell argued that this instruction was the correct instruction to give the jury.
¶ 169. There is presently a jury instruction on "Opening Statements," Wis JI — Criminal 101, which reads: "The lawyers will now make opening statements. The purpose of an opening statement is to give the lawyers an opportunity to tell you what they expect the evidence will show so that you will better understand the evidence as it is introduced during the trial. I must caution you, however, that the opening statements are not evidence." This instruction was not given before opening argument. The instruction did not read the same way in March 2000, and an earlier version may not have been available to the court because it was relatively new.
¶ 170. As noted above, the court proposed an instruction that read: "The jury is not to consider any statement of certain facts made in opening statements when such facts were not supported by evidence received during the course of this trial." This was the only proposed instruction under consideration in the conference that went beyond Wis JI — Criminal 157.
¶ 171. The truth is, this instruction would not have undone the damage of defense counsel's opening statement. First, as worded, it applied to both the defense and the State. Second, it was not materially different from the boilerplate instructions cited above. Third, it was highly unlikely to erase the jury's understanding that the defendant had been married, had three children, had testified before, and had a story that *341conflicted with the victim's story. As the circuit court patiently explained, the jury had a "reasonable alternative in their minds." Consequently, I do not see how any court could conclude that the circuit judge was acting irrationally or irresponsibly in believing that this cautionary instruction would not solve the problem.
¶ 172. The suggestion of a "measured response" in the State's closing argument is also problematic. The court mysteriously pronounces that "[t]here are circumstances ... when an accused 'opens the door' to a measured response by the prosecuting attorney [and t]he defendant opened the door in the instant case." Majority op., ¶ 74. However, the majority provides no guidance for future cases as to when that "door" opens, or what a similarly situated prosecutor could permissibly say during her closing argument.10 In fact, the State could not have pointed to any explicit language in the defendant's opening statement in which defense counsel promised that the defendant would testily. Instead, the court hints at the possibility of a response on the defendant's silence, then pulls back with the observation that the propriety of prosecutorial comment must he decided "case by case." Id. This observation can only have a chilling effect on a prosecutor's rebuttal.11 The *342majority is more comfortable relying on prosecutorial remarks that draw "the jury's attention to the distinction between argument and evidence." Id., ¶ 76. However, such comments would be far more effective in a case in which the defendant himself gave the opening statement (see State v. Johnson, 121 Wis. 2d 237, 242, 358 N.W.2d 824 (Ct. App. 1984)), than here, where the defense counsel was the culprit and had the assurance of an instruction stressing the defendant's absolute constitutional right not to testify.
¶ 173. The prosecutor inquired what she could say about the defense attorney's fictional tale. She declared that she had "every intention" not to be kind to Attorney Gaskell. And the majority now asserts that, "Any prejudice to the State by defense counsel's opening statement would be outweighed by defense counsel's loss of credibility with the jury for his unsubstantiated opening statement." Majority op., ¶ 78.
¶ 174. However, the more effective the prosecutor's commentary, the more likely Moeck would have had a claim for ineffective assistance of counsel if he were convicted. See Barrow v. Uchtman, 398 F.3d 597, 606-07 (7th Cir. 2005), and United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257-60 (7th Cir. 2003), for the proposition that unfulfilled promises by defense counsel to present personal testimony from a criminal defendant are highly suspect under Strickland v. Washington, 466 U.S. 668 (1984).
*343¶ 175. During the instructions conference, the court weighed cautionary instructions, the possibility of prosecutorial comment in the closing argument, and the nature of the prejudice to the State. The court heard contrasting views from the two sides. The court saw and heard the defendant refuse to waive objection to prosecutorial comment. The court had read case law on improper comment in opening statements and had asked the court reporter to read hack a portion of the opening statement.
¶ 176. Against this background, the majority's conclusory determination that the circuit court erred as a matter of law in its exercise of discretion is a virtual repudiation of the sound policies outlined in Arizona v. Washington. The Double Jeopardy Clause of the United States Constitution does not mandate this result.
¶ 177. For the foregoing reasons, I respectfully dissent.
¶ 178. I am authorized to state that Justice JON E WILCOX joins this opinion.All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.
This character evidence would not normally be admissible to prove conduct in conformance therewith. Wis. Stat. § 904.04(2). However, when the defendant chooses to place his character in issue, the defendant "opens the door" to rebuttal evidence about his character. Wis. Stat. § 904.04(1)(a); State v. Pulizzano, 155 Wis. 2d 633, 658, 456 N.W.2d 325 (1990); 7 Blinka Wisconsin Practice: Wisconsin Evidence § 404.4 at 133 (2d ed. 2001). Defense counsel effectively put Moeck's character in issue during his opening argument by referring to Moeck's children and the length of time Moeck had been married. Professor Blinka uses this precise example (the defendant's status as a "family man") as a situation in which the prosecution might be allowed to introduce responsive character evidence. Id.
For instance, the court removed the defendant from the courtroom because of his shouting and disruption during a sentencing hearing. In Arizona v. Washington, 434 U.S. 497, 513-14 (1978), the Court noted that the trial judge "is the judge most familiar with the evidence and the background of the case on trial."
Moeck petitioned for review in this court, but his petition was denied on September 26, 2002. This petition also contained the relevant transcript.
The majority never satisfactorily explains why the second court of appeals order should be disregarded.
In State v. Copening, 100 Wis. 2d 700, 709, 303 N.W.2d 821 (1981), the court observed: "[I]t is not infrequent that a trial court discerns sua sponte the necessity for a mistrial."
This evidence could easily be seen as character evidence. See supra n.2. Because Moeck did not actually testify, the State had no opportunity to rebut this "evidence," further justifying the court's decision to grant a mistrial.
At one point, the defendant said: 'Yeah, I'm not going to sit here and listen to the State's bullshit so just take me out."
The majority appears to draw a distinction between an opening statement that is proper when delivered and an opening statement that is made in bad faith. In this case, the defendant's opening statement was prejudicial to the State irrespective of whether it was delivered in bad faith. It was not less prejudicial because it was arguably proper when delivered. In light of the defendant's failure to testify, the opening statement inflicted the same irreparable damage on the State's case regardless of when it became clear that the statement was impermissible.
When relying on the "invited response doctrine," the prosecution treads on extremely thin ice. Even when her response is invited, the prosecutor must take care not to "unfairly prejudice" the defendant under the totality of the circumstances. United States v. Young, 470 U.S. 1, 12 (1985). The Court has also advised prosecutors to request a curative instruction in lieu of an oral response to perceived impropriety on the part of the defense. Id. at 13.
Under any circumstances, the prosecutor must tightly circumscribe her comments during closing argument. For example, the Supreme Court has held that a comment such as *342"[t]hese things [the defendant] has not seen fit to take the stand and deny or explain" is improper. Griffin v. California, 380 U.S. 609, 611 (1965). Even a comment that the prosecution's case is unrebutted or undisputed may be seen as impermissible if, as here, the defendant is the only witness who could conceivably rebut or dispute the prosecution's case. See United States v. Cotnam, 88 F.3d 487, 497 (7th Cir. 1996).