Double Jeopardy Bars Retrial Where Prosecutor Caused Mistrial

The Nevada Supreme Court has held that double jeopardy bars retrial of a former health care executive where the prosecutor’s misconduct led the defense to request a mistrial

In 2008, the State of Nevada filed an indictment against Lacy L. Thomas, the former chief executive officer of University Medical Center (UMC), charging five counts of theft and five counts of official misconduct. The charges related to contracts entered into between Thomas and five separate entities, which the State asserts were controlled by friends or associates of Thomas. The State contended that the terms of the five contracts were so grossly unfavorable to UMC that each contract represented an act of theft. One of these theft charges related to a contract negotiated by Thomas with Superior Consulting (ACS).

Thomas initially proceeded to trial in 2010. On approximately the fifth day of trial, an attorney for ACS, in a conversation with Thomas’s attorneys outside of court, referred to a binder of documents that he believed to be exculpatory with respect to ACS. ACS’s attorney indicated he had previously provided these documents to the police detectives investigating ACS and Thomas. These documents had never been provided to Thomas. 

On the basis of this late disclosure, Thomas moved for a mistrial. The district court granted the motion on the tenth day of trial.

After a cursory review, the district court found that, at a minimum, the documents provided substantial material relevant to the cross examination of several key witnesses. Given that 13 witnesses had already testified over nine days of trial, the district court determined that a mistrial was necessary.

Conclusion

All evidence before the district court in this case suggests that the prosecutor intentionally and improperly withheld exculpatory documents. This conduct was egregious, and caused prejudice to Thomas which could not be cured by means short of a mistrial. Therefore, double jeopardy bars reprosecution of Thomas on all counts.

Accordingly, we grant Thomas’s petition…

Justice Pickering dissented

The majority grants Thomas’s petition for a writ prohibiting the district court from retrying him and directs dismissal of all charges against him. To reach this result, the majority overturns 35 years of settled law and embraces a state-constitution-based double-jeopardy test all federal and most state courts have rejected as unworkable and unsound. Questions of intent are quintessentially for the district judge,  who sees firsthand what an appellate court only reads about. Despite this, and despite the district judge’s familiarity with the facts, having presided over the aborted trial and the evidentiary hearing that followed, the majority deems “clearly erroneous” the district court’s finding that the State did not intentionally suppress the compact disc or the documents it contained. The court then applies its new double-jeopardy test post hoc to an evidentiary hearing the district court and the parties conducted under prior law and, faulting the State for its lack of prescience, dismisses the case for a failure of essential proof under the court’s new test.

…I do not condone the prosecution’s failure to have turned over the ACS materials to the defense. But I do not believe the remedy for the discovery, or Brady, violation in this case is dismissal of all charges under Nevada’s double jeopardy clause, as opposed to a new trial.

The Las Vegas Sun reported on the criminal case.

The case is Thomas v. Eighth Judicial District Court. (Mike Frisch)