Full opinion text
MEMORANDUM AND ORDER GRANTING PETITION FOR HABEAS CORPUS JOHN W. OLIVER, Senior District Judge. I The first of the seven grounds alleged in the pending State prisoner habeas corpus petition presents the question of whether the petitioner was tried and convicted at a second trial in violation of the prohibition of the Double Jeopardy Clause of the Fifth Amendment that no “person shall be subject for the same offense to be twice put in jeopardy of life or limb.” Petitioner was convicted of first degree robbery at his first trial. That conviction was reversed by the Missouri Court of Appeals, Western District, on February 15, 1983 in State v. Scott, 647 S.W.2d 601 (Mo.App.1983) (hereinafter Scott I) and the case was remanded “for further proceedings consistent with this opinion.” Id. at 611. Scott I expressly noted that: The parties have not raised or briefed double jeopardy implications of retrial and a second attempt to establish as competent the fingerprint exhibits. No opinion is expressed here on the subject. Id. at 608. Petitioner was thereafter again tried and convicted of the same offense at a second trial. Petitioner’s motion to dismiss based on double jeopardy grounds was denied by the second trial court. Petitioner’s second conviction was affirmed by a different panel of the Missouri Court of Appeals, Western District, on September 3, 1985 in State v. Scott, 699 S.W.2d 760 (Mo.App.1985) (hereinafter Scott II). The pending petition for habeas corpus was filed March 3, 1988. Application of controlling federal standards, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), requires that we find and conclude that petitioner is entitled to federal habeas corpus relief under the first ground alleged in his pending petition. II The factual circumstances in regard to petitioner’s first trial were established by the Missouri Court of Appeals’ decision that reversed the conviction obtained at that trial. Scott I reliably found that “[i]n the main, the facts of the crime were uncontroverted, the sole issue being whether the accused, Scott, was one of two men who committed the robbery.” 647 S.W.2d at 603. Scott I accurately added that: The state’s evidence initially established that in the early afternoon of March 27, 1981, a robbery was committed at a Mil-gram’s food market in a Kansas City shopping center. The robbers were two black men, one short and the other tall with a full dark beard. Both men wore gloves but were otherwise undisguised. Id. at 603-04. After stating that the “hypothesis of the prosecution was that Scott was the taller of the two robbers,” Scott I found that “[n]one of the four store employees, however, made any positive identification of Scott” and that “Scott’s implication in the crime rested entirely on a fingerprint comparison.” Id. at 604. Scott’s fingerprint “was allegedly recovered by an evidence technician, William Fortner, from a scrap of cardboard retrieved from the floor of the Milgram store manager’s office.” Id. It was not until after the first prosecution witness had completed his testimony did the prosecutor disclose to the trial court and to defense counsel that “Fortner, the evidence technician, could not be located.” Id. Scott I stated that “Officer Fortner still had not been located [by] the third day of trial” and that he never testified at petitioner’s first trial. Id. at 605. Rather than requesting a recess in order to obtain the presence of Fortner, the State elected to call and rely on the testimony of two witnesses it had failed to endorse as prosecution witnesses as required by State law. In addition, the prosecution had also failed to disclose the names of those witnesses in response to a defense request made pursuant to Rule 25.03 of the Missouri Rules of Criminal Procedure. Scott I reliably found that at “a side bar conference when defense counsel pointed out that disclosure of witnesses Burns and Worlan had only occurred as trial began, the state candidly acknowledged that defense counsel had been unintentionally misled as to the witnesses who would be called.” 647 S.W.2d at 606. Scott I also found that the “trial court conceded the merit of defendant’s objection to use of state’s witnesses Burns and Worlan without prior disclosure and that the state agreed that the context of pre-trial discovery had misled the defense as to prosecution witnesses.” Id. Scott I stated, however, that the State trial “court denied a motion to disqualify Burns as a witness but did declare a recess to permit defense counsel to interview Burns before he testified.” Id. at 604. In like manner, the State trial court refused “to bar the use of [Worlan as] a surprise witness [but] provided the defense an opportunity to interview Worlan before he testified.” Id. Scott I reliably found that at the time Burns was called as the State’s first surprise witness, he was “portrayed as a routine witness describing the scene of the crime” and that “the state had made no disclosure that Fortner could not be found and that Bums would provide the sole link in the first chain of custody to the critical fingerprint exhibit.” Id. at 607. Scott I accurately stated that “the trial court gave no consideration to granting Scott’s motion to bar the state from using witnesses Bums and Worlan but viewed a mistrial or the opportunity to interview the witnesses as the full range of available sanctions.” Id. at 606. The choice offered by the trial court was “between a mistrial declared sua sponte by the court or an opportunity to interview Burns and Worlan before they testified.” Id. Scott I makes clear, however, that “defense counsel informed the court Scott did not seek a mistrial” and that, for reasons he stated, Scott wanted “to pursue the trial then in progress in hope of a favorable verdict.” Id. Scott I reliably found that Scott and his attorney “refused the proffered mistrial and made the best of the interview opportunity, conducted while the court and jury stood by awaiting resumption of proceedings.” Id. III A. Scott I noted that the following questions were presented on appeal: “[1] whether the state was entitled to use Bums and Worlan as witnesses after failing to disclose them in pre-trial discovery and, [2] whether the proof from these witnesses was sufficient to establish the integrity of the physical evidence.” 647 S.W.2d at 605. Scott I first discussed and ruled “Scott’s complaint about both surprise witnesses.” 647 S.W.2d at 605. It concluded that the trial court’s failure “to sustain defendant’s motion to exclude Burns and Worlan for failure of the state to provide timely discovery ... [required that] Scott’s conviction must be reversed.” Id. at 607. Scott I explained that “[i]n no other way could the prejudice to Scott’s due process rights be effectively removed.” Id. Scott I further concluded that the “fundamental unfairness of permitting the state to call previously undisclosed witnesses to prove vital elements of the prosecution’s case can scarcely be debated.” Id. at 606. It was further noted that at the time of trial “neither the court nor the prosecuting attorney entertained any doubt that some remedy was required to overcome the prejudice which summoning Bums and Worlan at the eleventh hour had produced.” Id. The Missouri Court of Appeals emphasized that “Scott did not seek and his cause was not furthered by a mistrial which, of course, would have aided the state in providing added time to locate the evidence witness, Fortner.” Id. at 606-07. It therefore concluded that the due process prejudice suffered by the petitioner under the circumstances, was not eradicated by “the opportunity given defense counsel to interview the witnesses.” Id. at 607. After answering the first question of “whether the state was entitled to use Burns and Worlan as witnesses” (id. at 605) in the negative, Scott I turned to the second question presented on appeal: “whether the proof from those witnesses was sufficient to establish the integrity of the physical evidence.” Id. That question was also answered in the negative. Scott I expressly held that “[a]ssuming, however, any doubt” as to whether “witnesses Burns and Worlan be disqualified, ... the conviction must nevertheless be reversed because [petitioner’s] alternative contention is valid.” Id. at 607. We turn now to the second question presented on appeal in Scott I. B. Scott I’s analysis of the sufficiency of the evidence adduced at petitioner’s first trial was made in light of its reliable finding that “[n]one of the four store employees ... made any positive identification of Scott” and its finding that “Scott’s implication in the crime rested entirely on a fingerprint comparison.” 647 S.W.2d at 604. Scott I stated that “the crucial nature of the evidence to be supplied by witnesses Burns and Worlan is self-evident” and concluded that “[without both witnesses, the state plainly had no case.” Id. at 606. After a careful analysis of all of the evidence adduced by the state, Scott I held that: The absence of testimony by Fortner left a material gap in the proof necessary to show with reasonable assurance the exhibit was in fact an article collected at the crime scene. That assurance was of particular importance here where Scott was not shown by other evidence to have had any connection with the exhibit and upon that exhibit alone depended the entitlement of the state to take the case to the jury. Id. at 608. In support of that ultimate finding, Scott I emphasized that the “foundation for admission of the scrap of cardboard from which the fingerprint had allegedly been recovered ... depended on the testimony of Burns and of the store manager in his description of how duct tape had been used to bind the store employees’ hands.” Id. at 604. Burns’ testimony did no more than describe “the arrival of police laboratory technician, Fortner, who Burns saw, ‘out of the corner of his eye,’ going about his work gathering evidence.” Id. Scott I acknowledged that “[according to Burns, a box or wrapper which had contained duct tape was on the office floor and this was among the materials Fortner placed in an evidence bag.” Id. Scott I, however, expressly found that the testimony of Burns “established only that some evidence similar in appearance to the piece of cardboard from which the fingerprint had been obtained was gathered by officer Fortner along with other objects and placed in an evidence bag.” Id. at 607. Scott I reliably found that “Burns could not and did not attempt to state that the exhibit offered in evidence was one of the items Fortner had retrieved.” Id. (Emphasis added). Scott I also reliably found that Worlan’s testimony, like that of Burns, was insufficient to establish the requisite proof of a chain of custody. For that court stated that “[w]hile Worlan did identify Fortner’s initials on the evidence bag, he had no knowledge as to the source of the contents and he was unable to explain why the evidence bag was twice delivered to the crime laboratory.” Id. In regard to the “inventory report and narrative account authored by Fortner [which was] admitted as a business record,” Scott I determined that Fortner’s written report and account was not sufficient to bridge “the material gap in the proof” for the reason that “[significantly, the report and Fortner’s narrative described in detail the evidence recovered at the crime scene, including the gloves and pieces of duct tape used to bind the victims but neither document made any mention whatever of a duct tape box or a piece of cardboard.” Id. Scott I accordingly found that “the necessity for Fortner’s testimony is underlined by the glaring omission in his official report of any mention of the exhibit.” Id. at 608. Scott I's negative answer to the second question as to “whether the proof ... was sufficient to establish the integrity of the physical evidence” (id. at 605) was thus based on its express evidentiary sufficiency finding that the “absence of testimony by Fortner left a material gap in the proof necessary to show with reasonable assurance the exhibit was in fact an article collected at the crime scene.” Id. at 608. IV A. After Scott I reversed petitioner’s first conviction and remanded the case for “further proceedings consistent with the opinion” (647 S.W.2d at 611), a different trial judge set the case for a second trial to commence on August 29, 1983. Exh. A at 2. Consistent with Scott I’s recognition of the presence of the double jeopardy question (647 S.W.2d at 608, n. 1), petitioner’s newly appointed counsel filed a motion to dismiss on the day petitioner’s second trial commenced. That motion alleged that “to permit retrial of this case would violate defendant’s right to be free from being twice placed in jeopardy for the same offense in violation of the Fifth Amendment to the United States Constitution.” Exh. B at 3. That motion was based on the ground that “the state did not make a submissible case at the first trial of this case” and on the ground that “the introduction of the duct tape box into evidence was ... a result of the inability of the state to lay a sufficient foundation at that trial.” Id. The motion to dismiss was argued on the day before the second trial commenced. See Exh. A at 3-7. The new trial judge peremptorily denied that motion. Id. at 7. Petitioner’s second trial went as could be easily anticipated. As was true of the second trial in Ashe v. Swenson, 397 U.S. 436, 459, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring), the prosecution in Scott’s second trial “plainly organized its case for the second trial to provide the links missing in the chain of identification evidence that was offered at the first trial.” Justice Brennan appropriately noted that the “hesitant and uncertain evidence of Gladson and Roberts at the [Ashe’s] first trial became detailed, positive, and expansive at the second trial.” Id. The same thing may be said of the testimony of Donald Gruis, the store manager, at Scott’s second trial. For Scott II establishes that Gruis’ testimony at Scott’s second trial, like that of Gladson and Roberts at Ashe’s second trial, “became detailed, positive, and expansive at the second trial.” 397 U.S. at 459. Gruis’ memory was so improved by the lapse of time between petitioner's first and second trials that the Scott II court was able to conclude that “the identification testimony of Gruis is sufficient to let a jury decide the issue and the fingerprint is merely added proof.” 699 S.W.2d at 762 (Emphasis added). Scott II’s finding in regard to Gruis’ testimony was thus directly contrary to Scott I’s finding that “[n]one of the four store employees [including Gruis, the store manager] made any positive identification of Scott.” 647 S.W.2d at 604. In addition, Gruis’ memory was much sharper at the second trial than at the first in regard to the documentary evidence. In order to expand the store manager’s testimony at the second trial, Gruis was shown “a photograph of the scene depicting the duct tape box.” Id. That photograph had been taken by Fortner when he “photographed the scene to show the location of the various items seized for evidence.” Id. Scott II stated that “Witness Gruis testified that this was the box the robbers left behind.” Id. One must experience a sense of uneasiness as to why, in light of the difficulties of proof the prosecution faced at the first trial, Gruis’ testimony at the second trial was not elicited at Scott’s first trial. Scott II, of course, could not avoid making a finding that “the cardboard was not specifically listed as being in state’s exhibit 17.” Id. at 764. Scott II, however, made a finding that “[t]here can be little doubt concerning the chain of custody of the duct tape card.” Id. at 765. That finding, of course, was directly contrary to the finding made in Scott I that there was “a material gap in the proof necessary to show with reasonable assurance the exhibit was in fact an article collected at the crime scene” and that such lack of proof was “underscored by the glaring omission in [Fortner’s] report of any mention of the exhibit.” 647 S.W.2d at 608. Scott II establishes that Fortner, the missing witness at Scott’s first trial, was called as witness at the second trial. Interestingly enough, the transcript of the second trial establishes that the trial court concluded that Fortner’s testimony at the second trial that he had a “vague recollection” of putting the fingerprint exhibit in the evidence bag (699 S.W.2d at 764) was not sufficient to close what Scott I held was a “material gap in the proof” that was necessary to establish that the duct tape container “was in fact collected at the crime scene.” 647 S.W.2d at 608. For the transcript of the second trial shows that when the State offered Exhibit 18 (the fingerprint exhibit) in evidence during the course of Fortner’s testimony (Exh. A at 257), the trial court sustained defense counsel’s objection to the admission of that exhibit in evidence. See Exh. A at 261. The record of the second trial establishes why that objection was sustained. That record shows that Fortner confirmed the fact that he had not listed the duct tape container in his Inventory Report (Exh. A at 258) and that he had not mentioned the piece of cardboard in his typewritten report of his investigation. Id. at 259. As we have noted, Scott II made an express finding that Fortner testified he had only “a vague recollection of placing” the piece of cardboard that later became Exhibit 18 inside a manila envelope [Exhibit 17] which was marked as containing pieces of duct tape. 699 S.W.2d at 764. Thereafter, however, the piece of cardboard exhibit from the duct tape container, was reoffered and admitted in evidence on the basis of Worlan’s testimony at Scott’s second trial. Worlan, of course, gave substantially the same testimony at the second trial that he gave at Scott’s first trial. The sharp contrast between Scott I and Scott II’s determination of the sufficiency of the evidence was most vividly illustrated by how each court viewed Worlan’s testimony. Scott I expressly found that Worlan “had no knowledge as to the source of the contents [of] the evidence bag” (647 S.W.2d at 607) and concluded that his testimony at the first trial was insufficient to establish the requisite proof of a proper chain of custody. Scott II, on the other hand, made a directly contradictory finding that Worlan’s reiterated testimony supported a conclusion that there “can be little doubt concerning the chain of custody of the duct tape card.” 699 S.W.2d at 765. Scott II apparently felt free to reject Scott I’s determination of the insufficiency of Worlan’s testimony on the theory that it “would be a high price indeed for society to pay were every accused granted immunity from punishment because of any doubt sufficient to cause reversible error in the proceedings leading to conviction.” 699 S.W.2d at 762 (quoting United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964)). Surely the Double Jeopardy Clause must be said to bar a second trial at which a directly contrary appraisal may be made of the sufficiency of the same testimony given by the same prosecution witness at a defendant’s first trial. The same thing is true of all the ultimate evidentiary sufficiency findings made in Scott I. B. Scott II simply did not address the evidentiary insufficiency ground upon which Scott I reversed petitioner’s conviction at the first trial. Scott II apparently accepted the State’s argument made in its Respondent’s brief (Exhibit D) that Scott I’s second ground for reversal was simply “dicta.” For the State there argued that “the reversal of his [petitioner’s] initial conviction was based solely upon the allegedly erroneous admission of the testimony of two unendorsed witnesses, and not on the basis of evidentiary insufficiency.” Exh. D at 14-15 (Emphasis added). The State argued on appeal in its Scott II Respondent’s brief that Scott I’s determination (1) that there was a material gap in the proof necessary to establish the requisite chain of custody over the fingerprint exhibit, (2) that its finding that the evidence was insufficient to establish that the fingerprint exhibit had in fact been collected at the scene of the crime, and (3) that its finding that there was no proof that the exhibit was preserved intact from the date of the crime until it was examined by Worlan were all made and contained in “several paragraphs of dicta.” Id. The State argued, and the Scott II court apparently accepted its argument, that Scott I’s evidentiary insufficiency findings were “not only dicta, but erroneous dicta as well.” Id. at 14. Indeed, the State argued in Scott II that Scott I should have affirmed petitioner’s conviction at the first trial and that Scott I erred when it reversed Scott’s first conviction. On page 18 of its Scott II brief, for example, the State argued that “the dicta in Scott which seems to hold that the State was unable to lay a proper foundation for the admission of the duct tape box without Fortner’s testimony is patently contrary to the record made at the first trial.” Id. at 22. The State further argued that “although the Scott dicta insists ‘that there was no proof at all that the exhibit was preserved intact from March 30, the date of the crime, until April 16 when Worlan made his examination’, id. 647 S.W.2d at 608, this assertion also is contradicted by the record made at the first trial.” Id. at 22-23. In its consideration of the double jeopardy question presented, this Court is required to accept the facts reliably found in Scott I rather than the contrary findings made after Scott was subjected to a second trial. For we are satisfied that Scott II failed to properly apply controlling federal standards when it concluded that Scott’s second trial was not barred by the Double Jeopardy Clause. We turn now to that question. V A. Scott II failed to apply controlling federal standards when it relied on dicta quoted from page 15 of Burks (437 U.S. at 15, 98 S.Ct. at 2149) to support its erroneous conclusion that the trial court’s failure “to sustain defendant’s motion to exclude witnesses for failure of the state to provide timely discovery” must be considered as “an incorrect ruling on the receipt of evidence [which] does not give rise to double jeopardy.” 699 S.W.2d at 763. Burks, in our judgment, cannot be said to hold that an appellate reversal based on a trial court’s failure to grant a defense motion to exclude surprise witnesses called in violation of a specific rule of court may properly be considered nothing more than something labeled as a “trial error” for double jeopardy purposes. Nor, in our judgment, can it be said that Burks held that an appellate reversal based on express findings that the prosecution had failed to offer proof sufficient to establish the requisite chain of custody of a fingerprint exhibit may properly be considered as nothing more than something labeled as a “trial error” for double jeopardy purposes. For Burks “squarely presented ... the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.” 437 U.S. at 5, 98 S.Ct. at 2144. The Court unanimously answered that question in the negative. In doing so the Court expressly overruled Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950), and generally rejected the rationale earlier stated in Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955), Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), and Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). Burks recognized that the “Court’s holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity.” 437 U.S. at 9, 98 S.Ct. at 2146. It later added that “our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands.” Id. at 12, 98 S.Ct. at 2147. In its reconsideration of Bryan, the Court noted that the “somewhat cursory examination of the double jeopardy issue” made in that case was limited to the Court’s citation of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), and Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905), both of which were based on short quotations from one part of the leading case of United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Burks noted that Resweber cited Ball to support a broad statement that “where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial” and that “Trono made a similar comment, citing Ball for the proposition that ‘if the judgment of conviction be reversed on [the defendant’s] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted.’ ” 437 U.S. at 12, 98 S.Ct. at 2148. Burks thus concluded that: The common ancestor of these statements in Resweber and Trono, then, is United States v. Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the cases which have followed in its wake. This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal. North Carolina v. Pearce, 395 U.S. 711, 719-720 [89 S.Ct. 2072, 2077-2078, 23 L.Ed.2d 656] (1969). Id. at 13, 98 S.Ct. at 2148. Burks stated that “Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder” and that “those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment.” Id. Burks, however, did not mention that the first appeal, reported in 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891), established that the initial indictment in the case, dated October 17, 1889, charged three defendants, M.F. Ball, J.C. Ball, and R.E. Boutwell, with the murder of William T. Box. In Ball I the jury in the first joint trial of all three defendants found “the defendants J.C. Ball and R.E. Boutwell, guilty as charged in this indictment, and we find M. Filmore Ball not guilty.” 140 U.S. at 122, 11 S.Ct. at 763. As noted in Burks, two of the defendants, J.C. Ball and R.E. Boutwell, appealed and obtained “a reversal of their convictions due to a faulty indictment.” The Court entered an order that “[t]he judgments are reversed and the cause remanded, with a direction to quash the indictment, and for such further proceedings in relation to the defendants as to justice may appertain.” 140 U.S. at 136, 11 U.S. at 768. M.F. Ball, the acquitted defendant, of course, did not appeal the verdict of not guilty the jury returned in regard to him. Burks also failed to state that a second indictment was returned on June 26, 1889 which, in spite of Millard Filmore Ball’s acquittal at the first trial, again charged all three defendants with Box’s murder. See 163 U.S. at 663, 16 S.Ct. at 1192. Ball II noted that to "this indictment Millard F. Ball filed a plea of former jeopardy and former acquittal, relying upon the trial, the verdict of acquittal, and the order of the court for his discharge, upon the former indictment.” 163 U.S. at 665, 16 S.Ct. at 1193. It was also noted that the “defendants John C. Ball and Boutwell filed a plea of former jeopardy, by reason of their trial and conviction upon the former indictment, and of the dismissal of that indictment.” Id. The trial court overruled the former jeopardy pleas of all three defendants; all three were found guilty at the second trial; and all three were sentenced to death. Id. at 665-66, 16 S.Ct. at 1193. Burks makes no reference to the fact that the first question considered in Ball II was the double jeopardy question presented by “the acquittal of Millard F. Ball by the jury upon the trial of the former indictment.” Id. at 666, 16 S.Ct. at 1193. For reasons stated in detail Ball II held that “the verdict of acquittal was conclusive in favor of Millard F. Ball; and as to him the judgment must be reversed, and judgment rendered for him upon his plea of former acquittal.” Id. at 671, 16 S.Ct. at 1195. Ball II expressly refused to follow the rule recognized in England which then provided that “an acquittal upon an indictment so defective that, if it had been objected to at the trial, or by motion in arrest of judgment, or by writ of error, it would not have supported any conviction or sentence, has generally been considered as insufficient to support a plea of former acquittal.” Id. at 666, 16 S.Ct. at 1193. Ball II concluded that the English doctrine “appears to us to be unsatisfactory in the grounds on which it proceeds, as well as unjust in its operation upon those accused of crime.” Id. at 669, 16 S.Ct. at 1194. In regard to Millard F. Ball’s conviction at the second trial, Ball II therefore concluded that: As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence. Id. at 671, 16 S.Ct. at 1195. It is thus apparent that Ball II, contrary to the rule in England and the rule that was then followed in most American jurisdictions, established the fundamental rule that a verdict of acquittal is to be given paramount recognition in the decision of double jeopardy questions. Ball II also held, as Burks pointed out, that the pleas of John C. Ball and Robert E. Boutwell were properly denied because “upon a writ of error sued out by themselves the judgment and sentence against them were reversed, and the indictment ordered to be dismissed.” Id. at 672, 16 S.Ct. at 1195. Ball II, however, said nothing about reversals of convictions based on “trial error,” as the Burks’ dicta suggested. Rather, Ball II simply stated that “it is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, of the same offence of which he had been convicted” and that the “court therefore rightly overruled their plea of former jeopardy....” Id. It must be recognized that Ball II did no more than establish an exception to the Double Jeopardy Clause. 3 W. LaFave & J. Israel, Criminal Procedure, § 24.4 at 85 (West 1984), accurately states that in “the seminal double jeopardy decision of United States v. Ball, the Supreme Court recognized an exception to the general constitutional prohibition against reprosecuting a person for an offense of which he has already been convicted.” Burks' precise holding, as distinguished from its dicta, held that the considerations that permit a second trial under Ball II’s exception to the mandate of the Double Jeopardy Clause simply does not apply “when a defendant’s conviction has been overturned due to a failure of proof at trial [for the reason] ... the prosecution ... has been given one fair opportunity to offer whatever proof it could assemble.” 437 U.S. at 16, 98 S.Ct. at 2149-50. Of paramount importance, Burks made clear for the first time that it is immaterial for double jeopardy purposes whether a judgment of acquittal is entered pursuant to a jury verdict of acquittal or whether such a judgment is entered on an appellate court’s determination that the prosecution failed to adduce sufficient evidence to support the defendant’s conviction. The Court explained that “[i]n holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt.” Id. at 16 n. 10, 98 S.Ct. at 2150 n. 10. Burks further explained that: [A]n appellate reversal [based on evidentiary insufficiency grounds] means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty. (The Court’s emphasis). Given the requirements for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial “second bite at the apple.” Id. at 16, 17, 98 S.Ct. at 2150. It is also important to note that Burks, on its facts, involved a jury verdict of guilty rather than a jury verdict of acquittal as was the situation in regard to Millard F. Ball in Ball II. Burks concluded that “it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insuffident.” Id. at 11, 98 S.Ct. at 2147 (The Court’s emphasis). Burks flatly held that: The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. Id. And in footnote 6, Burks emphasized that “where the Double Jeopardy Clause is applicable, its sweep is absolute” for the reason “the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination.” Id. In short, the Court sustained the defendant’s argument that the appellate reversal involved in Burks must be considered as “the operative equivalent of a district court’s judgment of acquittal.” Id. at 5, 98 S.Ct. at 2144. B. Burks’ application of the Court’s “implicit-acquittal principle” was consistent with the Court’s earlier double jeopardy precedents. For the notion that the Double Jeopardy Clause is limited to jury verdicts of acquittal was expressly rejected in United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Martin Linen involved a hung jury. The district court, however, granted a post trial motion for acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. The government presented the argument that “only a verdict of acquittal formally returned by a jury should absolutely bar further proceedings.” Id. at 572, 97 S.Ct. at 1355. The Court rejected that argument for the reason that “it is plain that the District Court in this case evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.” Id. In support of its rejection of the government’s argument, the Court quoted from Ball, from Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), and cited Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), and Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The Court then concluded that: In applying this teaching of Ball, Fong Foo, and like cases, we have emphasized that what constitutes an “acquittal” is not to be controlled by the form of the judge’s action. United States v. Sisson, supra, at 270 [90 S.Ct. at 2119]; cf. United States v. Wilson, 420 U.S. [332] at 336 [95 S.Ct. 1013 at 1018, 43 L.Ed.2d 232 (1975)]. Rather, we must determine whether the ruling of the judges, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. 430 U.S. at 571, 97 S.Ct. at 1354. Martin Linen further held that the familiar principles stated in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), were not to be applied in that case for the reason that “valid judgments of acquittal were entered” by the district court pursuant to Rule 29(c) and because “a successful governmental appeal reversing the judgments of acquittal would necessitate another trial, or, at least, ‘further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged....’ United States v. Jenkins, 420 U.S. 358, 370 [95 S.Ct. 1006, 1013, 43 L.Ed.2d 250] (1975).” Id. at 570, 97 S.Ct. at 1354. The standard articulated in Martin Linen was expressly approved by the Court’s recent unanimous opinion in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). In that case the state trial court granted a defense demurrer at the close of the prosecution’s case in chief on the ground that the state’s evidence was insufficient to support a verdict of guilty. The Court stated that “[o]ur past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564 [97 S.Ct. 1349, 51 L.Ed.2d 642] (1977); Sanabria v. United States, 437 U.S. 54 [98 S.Ct. 2170, 57 L.Ed.2d 43] (1978).” 476 U.S. at 144, 106 S.Ct. at 1748. Smalis concluded that the Superior Court of Pennsylvania, rather than the Supreme Court of Pennsylvania, was correct when it held that “the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into ‘ “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.” ’ Martin Linen, supra, [430 U.S.] at 570 [97 S.Ct. at 1354].” Id. at 145-46, 106 S.Ct. at 1749. The Court made clear that the “fact that the ‘further proceedings’ standard which the Superior Court quoted from Martin Linen was first articulated in United States v. Jenkins, 420 U.S. 358, 370 [95 S.Ct. 1006, 1013, 43 L.Ed.2d 250] (1975), does not detract from its authority” for the reason that although United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), overruled a part of Jenkins, the standard cited in that case was not disapproved. Id. 476 U.S. at 146 n. 9, 106 S.Ct. at 1749 n. 9. That standard is therefore applicable to this case. C. Martin Linen is particularly important to the determination of this case for the reason that Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), was cited with approval in connection with the Court’s discussion of the constitutional principle stated in the Double Jeopardy Clause. 430 U.S. at 569, 97 S.Ct. at 1353. We turn now to Downum for the reason the factual circumstances presented in that case were substantially the same as those presented in this case. In Downum the defendant was charged in an eight-count indictment. The case was called for trial and both sides announced ready. After the jury was selected and sworn, but before any evidence was adduced, the prosecution discovered that “its key witness on Counts 6 and 7 was not present.” 372 U.S. at 735, 83 S.Ct. at 1034. The defendant’s motion to dismiss those counts was denied and the trial judge discharged the first jury. The Court then noted that “[t]wo days later when the case was called again and a second jury impaneled, petitioner pleaded former jeopardy. His plea was overruled, a trial was had, and he was found guilty.” Id. The Court of Appeals for the Fifth Circuit affirmed. The Court stated that “we granted the petition for certiorari because of the seeming conflict between this decision and Cornero v. United States, 48 F.2d 69 [1931], from the Ninth Circuit.” Id. Thus in Downum, as in this case, the “prosecution allowed the jury to be selected and sworn even though one of its key witnesses was absent and had not been found.” Id. In its resolution of the conflict between the Fifth and Ninth Circuits, the Court noted that in Cornero, the Ninth Circuit case, “a trial was first continued because prosecution witnesses were not present, and when they had not been found at the time the case was again called, the jury was discharged.” Id. at 737, 83 S.Ct. at 1035. The case was called a second time, the defendant’s plea of double jeopardy was denied, and the second jury found the defendant guilty as charged. The Ninth Circuit, however, reversed. In reversing the Fifth Circuit in Downum, the Court concluded that “what was said in Cornero v. United States, supra, states the governing principle.” Id. The Court quoted the following from the Ninth Circuit’s opinion which reversed the district court's denial of the defendant's double jeopardy plea: “The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance.... The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy. There is no difference in principle between a discovery by the district attorney immediately after the jury was impaneled that his evidence was insufficient and a discovery after he had called some or all of his witnesses.” Id. at 737, 83 S.Ct. at 1035. The Court accordingly reversed the Fifth Circuit for the reason the Court held that the view of the Ninth Circuit was the “correct” view. Id. at 738, 83 S.Ct. at 1035. We find and conclude that when the prosecutor in Scott I impaneled the jury for Scott’s first trial without ascertaining whether Fortner would be present as a witness, he, as the prosecutor in Downum, “took a chance” for double jeopardy purposes. That chance was that if the testimony of Burns and Worlan was not sufficient to establish the requisite chain of custody, he would not be able to subject the petitioner to a second trial. We turn now to the application of the double jeopardy principles stated in the Supreme Court cases we have discussed to the factual circumstances in this case. VI Application of the Double Jeopardy Clause standards articulated in the cases we have cited and discussed to the factual circumstances of this case requires that petitioner be granted appropriate habeas corpus relief on the two separate and independent grounds. We find and conclude that the negative answers given to the two questions on which Scott I based its reversal of petitioner’s conviction at his first trial must be considered as the equivalent of a verdict of not guilty for double jeopardy purposes and that petitioner’s second trial was therefore conducted in violation of the Double Jeopardy Clause and the controlling standards most recently unanimously articulated in Smalis. A. The first question considered in Scott I was “whether the state was entitled to use Bums and Worlan as witnesses after failing to disclose them in pretrial discovery.” 647 S.W.2d at 605. Scott I answered that question in the negative. In consideration of that action for double jeopardy purposes, it must be noted that the prosecutor in Scott’s first trial, like the prosecutor in Downum, “took a chance [when he] impaneled the jury without first ascertaining whether or not his witnesses were present.” 372 U.S. at 737, 83 S.Ct. at 1035. That prosecutor increased the double jeopardy risk when he called Bums and Worlan in open violation of Missouri Rule 25 and when he misled defense counsel during the course of the pretrial discovery. Scott I recognized that Bums and Worlan were called as surprise witnesses in the prosecution’s attempt to bridge the “material gap in the proof” created by the absence of testimony by Fortner, the missing witness. 647 S.W.2d at 608. Scott I reliably found that “the crucial nature of the evidence to be supplied by witnesses Bums and Worlan is self-evident” and that “[wjithout both witnesses, the state plainly had no case.” Id. at 606. The prosecutor’s double jeopardy risk was further compounded by the fact that the “trial court conceded the merit of defendant’s objection to use of state witnesses, Bums and Worlan, without prior disclosure” and by the fact that “the state agreed that the context of pre-trial discovery had misled the defense as to prosecution witnesses.” Id. The trial court, however, “gave no consideration to granting Scott’s motion to bar the state from using witnesses Bums and Worlan.” Id. Rather, in obvious recognition that the granting of Scott’s motion to exclude Bums and Worlan as witnesses would necessarily require the trial court later to grant a defense motion for acquittal at the close of the prosecution’s case in chief, the trial court unsuccessfully attempted to force Scott to elect to file a motion for a mistrial. Under established double jeopardy principles, most recently and unanimously approved in Smalis, the eventual granting of a defense motion for acquittal at the close of the prosecution’s case in chief would have barred a second trial. For Scott’s second trial obviously reflected “further proceedings ... devoted to the resolution of factual issues going to the elements of the offense charged” in Scott’s first trial. 476 U.S. at 146, 106 S.Ct. at 1747. When Scott was “twice put in jeopardy ... for the same offense,” the conviction obtained as a result of the further proceedings conducted at his second trial was affirmed in Scott II when that court refused to recognize the evidentiary insufficiency findings made in Scott I upon which that court reversed Scott’s initial conviction. Scott I reliably found that “defense counsel informed the court that Scott did not seek a mistrial” and that he wanted “to pursue the trial then in progress in the hope of a favorable verdict.” Id. at 606. Scott I accurately stated that “Scott did not seek and his cause was not furthered by a mistrial which, of course, would have aided the state in providing added time to locate the evidence witness, Fortner.” Id. at 606-07. The “solution” offered Scott by the trial court was the “Hobson’s choice” to choose between “a mistrial declared sua sponte by the court or an opportunity to interview Burns and Worlan before they testified.” Id. at 606. Neither alternative would have solved the double jeopardy problem created by the prosecutor’s willingness to run the risk of commencing Scott’s first trial without having Fortner available as a witness. For the impact of the Double Jeopardy Clause would not have been avoided had the trial court carried out its threat to declare a mistrial sua sponte. Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), made clear over thirty years ago that had the trial court in Scott’s first trial declared a mistrial sua sponte without Scott’s consent, the Double Jeopardy Clause would have barred a second trial. Green held that: This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again. Wade v. Hunter, 336 U.S. 684 [69 S.Ct. 834, 93 L.Ed. 974 (1949)]; Keener v. United States, 195 U.S. 100, 128 [24 S.Ct. 797, —]. In general see American Law Institute, Administration of The Criminal Law: Double Jeopardy 61-72 (1935). This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict. Id. at 188, 78 S.Ct. at 223 (Emphasis added). The Eighth Circuit stated the same rule as follows in United States v. Beran, 546 F.2d 1316, 1319 n. 2 (8th Cir.1976): While the trial court may order a mistrial on its own motion, its power to do so is limited by the double jeopardy clause of the Fifth Amendment. Only if there is an “imperious” or “manifest necessity” for doing so will the ordering of a mistrial come within the recognized exceptions to the double jeopardy provision. See Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Certainly, it cannot be said that the circumstances reliably found in Scott I presented an “imperious” or “manifest necessity” under the Perez rule for the trial court to have exercised its limited power to declare a mistrial on its own motion. The only way the impact of the Double Jeopardy Clause could have been avoided under the circumstances of Scott’s first trial would have been the granting of a motion for mistrial voluntarily and deliberately filed by Scott. Scott I reliably found that Scott did not want a mistrial; Scott made clear to the trial court that he wanted to “pursue the trial then in progress in the hope of a favorable verdict.” 647 S.W.2d at 606. Scott I properly concluded that the trial court’s “solution” to the obvious double jeopardy problem created by the prosecutor’s willingness to take a chance was no solution at all. Scott I therefore properly reversed the conviction on the separate and independent ground that the trial court’s failure “to sustain the defendant’s motion to exclude witnesses Bums and Worlan” was the only way that “the prejudice to Scott’s due process [could] be effectively removed.” Id. at 607, We find and conclude that under the circumstances of this case, the first ground on which Scott’s conviction was reversed must be considered as the equivalent of a verdict of not guilty and that Scott’s second trial was conducted in violation of the Double Jeopardy Clause. B. The second question presented in Scott I was “whether the proof from these witnesses [Burns and Worlan] was sufficient to establish the integrity of the physical evidence.” Id. at 605. The “physical evidence” was the “scrap of cardboard from which [Scott’s] fingerprint had allegedly been recovered.” Id. at 604. The second question presented on appeal was whether the prosecution had adduced sufficient evidence to establish the “requisite proof” that the fingerprint “exhibit was in fact an article collected at the crime scene.” Id. at 608. Scott I answered that question in the negative. Consideration of Scott I’s answer for double jeopardy purposes requires an analysis of the rationale on which that negative answer was based. In its description of the “hypothesis of the prosecution” Scott I stated that “Scott’s implication in the crime rested entirely on a fingerprint comparison.” Id. at 604. And in stating the “particular importance” of the fingerprint exhibit, Scott I concluded that “upon that exhibit alone depended the entitlement of the state to take the case to the jury.” Id. at 608. Scott I concluded that the “absence of testimony by Fortner left a material gap in the proof necessary to show with reasonable assurance the exhibit was in fact an article collected at the crime scene.” Id. at 608. That decision based on Scott Vs finding that the testimony of Bums “established only that some evidence similar in appearance to the piece of cardboard from which the fingerprint had been obtained was gathered by officer Fortner along with other objects and placed in an evidence bag.” Id. at 607. Scott I expressly found that “Burns could not and did not attempt to state that the exhibit offered in evidence was one of the items Fortner had retrieved.” Id. In regard to Worlan’s testimony, Scott I found that “[w]hile Worlan did identify Fortner’s initials on the evidence bag, he had no knowledge as to the source of the contents and he was unable to explain why the evidence bag was twice delivered to the crime laboratory.” Id. And in regard to Fortner’s written report admitted in evidence as a business record at Scott’s first trial, Scott I stated that “[significantly, the report and Fortner’s narrative described in detail the evidence recovered at the crime scene, including the gloves and pieces of duct tape used to bind the victims but neither document made any mention whatever of a duct tape box or a piece of cardboard.” Id. at 607. The failure of proof that Scott I found was present under the circumstances of Scott’s first trial was obviously different from the failure of proof presented under the circumstances of Burks. The factual differences in the two cases, however, do not provide a basis for distinguishing one from the other. Burks held that the Double Jeopardy Clause barred a second trial for the reason the appellate court’s evidentiary insufficiency reversal was based on its finding that “the prosecution’s evidence with respect to Burks’ mental condition, even when viewed in the light most favorable to the Government, did not ‘effectively rebu[t]’ petitioner’s proof with respect to insanity and criminal responsibility.” 437 U.S. at 4, 98 S.Ct. at 2143. Scott I’s appellate evidentiary insufficiency reversal was based on its finding that the testimony of the witnesses Bums and Worlan, when viewed in the light most favorable to the prosecution, simply was not sufficient to establish that the piece of cardboard from which Scott’s fingerprints were lifted was “in fact an article collected at the crime scene.” 647 S.W.2d at 608. Accordingly, the jeopardy principles stated in Burks are applicable to this case. For it is clear that the second ground upon which Scott I’s appellate reversal was based was that court’s definitive finding that the prosecution had failed to adduce sufficient evidence to establish the requisite proof that would permit the jury to consider the single item of evidence that would have permitted "the state to take the case to the jury.” 647 S.W.2d at 608. Under all of the evidence adduced at the first trial, as Scott I viewed it, the prosecution was able to get the fingerprint exhibit in evidence without adducing sufficient evidence that the piece of cardboard from which the fingerprint had been obtained was, in fact, an item that Fortner had retrieved at the scene of the crime. In short, Scott I concluded that the fact that one of Scott’s fingerprints was admitted in evidence, standing alone, was not sufficient to support a verdict of guilty. Burks established the principle that it is immaterial for double jeopardy purposes that an appellate court, rather than a trial court, determines the evidence to be insufficient to support a jury verdict of guilty. It is unquestionably true in this case, as it was in Burks, that Scott I’s appellate decision “represented] a resolution, correct or not, of some or all of the factual elements charged” within the meaning of the Martin Linen standard approved in Smalis, 437 U.S. at 10, 98 S.Ct. at 2146. Burks concluded that such an “appellate decision unmistakenly meant that the District Court had erred in failing to grant a judgment of acquittal.” 437 U.S. at 11, 98 S.Ct. at 2147. Application of the principles stated in Burks requires that we find and conclude that the Double Jeopardy Clause barred Scott's second trial. Any doubt that Martin Linen’s standard must be applied to this case was removed by the Court’s recent opinion in Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984). In that case there was no question that the court’s evidentiary insufficiency finding was based on that court’s misconstruction of a statute. The Court, however, held that: Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. “[T]he fact that ‘the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles’ ... affects the accuracy of that determination, but it does not alter its essential character.” United States v. Scott, 437 U.S. 82, 98 [98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (quoting id., at 106, [98 S.Ct. at 2201] (Brennan, J., dissenting)). Thus, this Court’s cases hold that an acquittal on the merits bars retrial even if based on legal error. Scott I’s reversal must be considered for double jeopardy purposes as a “judgment that amounts to an acquittal on the merits.” Id. at 211, 104 S.Ct. at 2310. We therefore further find and conclude that the prosecution at Scott’s first trial, having “been given one fair opportunity to offer whatever proof it could assemble” (437 U.S. at 16, 98 S.Ct. at 2150) was barred by the Double Jeopardy Clause from having “the proverbial ‘second bite at the apple.’ ” Id. at 17, 98 S.Ct. at 2150. Accordingly, an order will be entered granting petitioner appropriate habeas corpus relief on the first ground alleged in his petition. VII Petitioner alleged six additional grounds for federal habeas corpus relief. All those grounds, however, were based on claims that related to petitioner’s second trial and to the Missouri Rule 27.26 proceeding conducted in regard to the second trial. Our grant of habeas corpus on the double jeopardy ground alleged as the first ground of the petition moots all remaining questions and need not be discussed. It is appropriate to state, however, that petitioner, in what must be considered as his brief on the merits, presented another double jeopardy contention which we considered but determined to be untenable in light of the limitations placed on the earlier standard stated in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), by the Court’s more recent divided opinion in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Petitioner argued on page 6 of his “brief” that: There is an additional basis for holding the trial court and appeal court errored and subjected petitioner to double jeopardy ... [Petitioner contends that at lest [sic] in some circumstances the double jeopardy clause may preclude retrial after a reversal for judge and prosecutorial misconduct or overreaching ... In support of this proposition, the petitioner urges that this court look to the law governing mistrials that are triggered by prosecutorial or judge overreaching. In such cases the double jeopardy clause ... bars retrial where “bad faith conduct by judge or prosecutor” so as to afford the prosecutor a more favorable opportunity to convict the defendant. (See Downum v. U.S., [372 U.S. 734, 83 S.Ct. 1033] 10 L.Ed.2d 100); United States v. Kesler, 530 F.2d 1246 (5th Cir. [1976]); United States v. Wilson, 534 F.2d 76 [6th Cir.1976]; Petrucelli v. Smith, 544 F.Supp. 627 [D.N.Y.1982]. Brief at 6. We must reject petitioner’s overreaching argument for the reason that Downum has not generally been considered to be an overreaching case and for the reason that Kesler and Wilson were decided before Kennedy. Kesler and Wilson therefore did not consider the impact of the limitation placed on standards stated in Dinitz by Kennedy. The Court recognized in Kennedy that the controlling standards to be applied in an overreaching case “have been stated with less than crystal clarity in our cases which deal with this area of the law.” 456 U.S. at 674, 102 S.Ct. at 2088. Indeed, the Court candidly stated that in “adopting the position we now do, we recognize that language taken from our earlier opinions may well suggest a broader rule.” Id. at 677-78, 102 S.Ct. at 2090. Kennedy, of course, adopted a more narrow rule. For the new standard articulated in that case that must be currently applied is that “[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76, 102 S.Ct. at 2089 (Em