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71 Temp. L. Rev. 887 (1998)
Prosecutor Misconduct, Convictions, and Double Jeopardy: Case Studies in an Emerging Jurisprudence

handle is hein.journals/temple71 and id is 897 raw text is: PROSECUTOR MISCONDUCT, CONVICTIONS, AND
Kenneth Rosenthal*
In the past six years, a line of case law has emerged in the state and federal
courts addressing an issue that lay dormant for more than a decade: the double
jeopardy limitation on retrial following prosecutorial misconduct. The signifi-
cance of the emerging case law extends beyond the sometimes dramatic results
of the specific cases, and even beyond the courts' doctrinal refinements in double
jeopardy analysis. Taken together, these cases illuminate one of the most fun-
damental issues in criminal justice and the very notion of government under law.
The cases highlight the enormous imbalance between the State and the accused,
and the difficulty of effectuating workable, principled limitations on prosecutors'
virtually unchecked powers.
The intrusion of the government into the lives of its subjects is at its zenith
in criminal prosecutions. No public official has a greater direct impact on the in-
dividual citizen than the prosecutor in a criminal case: in the decision to charge
and what to charge; in the control of vast governmental resources in investigat-
ing and preparing a case; in the plea bargaining process for the majority of cases
that are resolved without trial; and in the deference and authority the prosecu-
tion commands before juries in those cases that are tried to a conclusion.1 In
* Member of Bar, New Haven, Connecticut; B.A., Yale College, 1967; J.D., University of Con-
necticut School of Law, 1978. I would like to express my gratitude for the helpful comments of Darcy
McGraw, a former prosecutor and an inspiring human being. The groundwork for this Article con-
sists, in equal measure, of library research and my experience as trial and appellate counsel for the
defendant in State v. Coton, one of the cases discussed below. I note this fact not only in the interests
of full disclosure, but also because an ongoing dialectic of scholarship and clinical work was central
to the process giving rise to this Article, as reflected in the attempt to integrate detailed case narrative
(case studies) with the legal analysis. I have long relished double jeopardy jurisprudence precisely
because it requires the melding of high theory and the procedural intricacies of individual cases. My
experience with this Article, and with Coton, have confirmed my long-standing belief that scholarship
and practice would both be well-served by far greater exposure to one another, similar to the common
practice in the medical profession.
1. More than 50 years ago, then-Attorney General Robert H. Jackson described the powers of
the prosecutor as follows:
The prosecutor has more control over life, liberty, and reputation than any other person in
America. His discretion is tremendous. He can have citizens investigated and, if he is that
kind of person, he can have this done to the tune of public statements and veiled or unveiled

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