Thread by @AaronWorthing

Let me take a moment to explain something that a lot of people don’t understand about the #RittenhouseTrail

normally there can only be one trial growing out of the events we saw on the video. I am simplifying a little, but that’s what the double jeopardy clause means

Thread

But there is an exception. Typically if the defense asks for a mistrial they are basically waiving the double Jeopardy issue. So if the prosecutor asks for a mistrial, the judge can grant it, but they can’t try the guy again.

But if the defense asks for one then the defendant can be tried again.

now sometimes, prosecutors want to have a second trial because the first isn’t going particularly well and a second trial would allow them to be more prepared for what the defense might do

So sometimes unscrupulous prosecutors will intentionally engage in misconduct trying to get the defense to ask for a mistrial.

so there is a rule for that situation. If it is found that the prosecutor has engaged in intentional misconduct designed to cause the defense to ask…

…for a mistrial, then the judge will grant a mistrial with prejudice, meaning that not only is the trial over but the defendant cannot be tried again. This is designed to avoid allowing prosecutors to get around the double jeopardy clause

You might reasonably wonder if that’s what’s happening here. I can say that the judge in the #rittenhouseTrail suspects that. On the day when Rittenhouse took the stand, the judge all but said that he suspected that the prosecution was trying to do this.

He also made it clear that this was his final warning.

now, you might ask why he isn’t granting a miss trial now. But the fact is it is harder to challenge an acquittal on appeal then a mistrial with prejudice.

and if the judge gets it wrong we have a disfavored exception…

…to the rule against double jeopardy. For the sake of judicial economy and for the sake of the constitution judges do not like to have defendants tried more than once for the same incident.

finally, because this rule only applies to prosecutorial misconduct if a third-party…

… causes a mistrial, it can’t be with prejudice unless you can find proof that somehow the prosecutor is responsible for it.

so MSNBC’s alleged antics can’t cause a mistrial with prejudice. But it might cause a mistrial that allows for new trial

And please note most states have obstruction of justice statutes that can apply to when a mistrial is caused by a third-party’s antics. I’m not going to get into whether or not specific people might be guilty under certain statutes, but there are such laws. /end