People v. Sierb

581 N.W.2d 219 (1998) 456 Mich. 519

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
James Steven SIERB, Defendant-Appellee.

Docket No. 107551, Calendar No. 9.

Supreme Court of Michigan.

Argued October 8, 1997. Decided March 17, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the People.

Magill & Szymanski (by Duncan M. Szymanski), for the defendant.

Opinion

BOYLE, Justice.

The trial court granted defendant's motion to dismiss with prejudice charges of burning real and insured property following the second declaration of a mistrial because of jury inability to agree on a verdict. We granted leave to appeal to determine whether the trial court correctly inferred this remedy from the substantive Due Process Clause of the constitution. We hold that the due process guarantees of the Michigan and United States Constitutions, Const. 1963, art. 1, § 17, and U.S. Const., Am. XIV, do not create a right to preclude retrial of this defendant in these circumstances. We reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.

I

The defendant was charged and bound over on one count of burning real property, M.C.L. § 750.73; M.S.A. § 28.268, and one count of burning insured property, M.C.L. § 750.75; M.S.A. § 28.270, following a fire that damaged his business in Garden City in June, 1990. Trial began in June, 1993, and a mistrial was declared after the jury was unable to reach a verdict. In February, 1994, a second trial was commenced against the defendant in which substantially the same evidence was offered. Again, the jury was unable to reach a verdict, and a mistrial was declared.^[1]

The defendant moved for dismissal of the charges. Acknowledging that the earlier mistrials had not been the result of procedural or substantive errors in the trial process, defendant contended that retrial after two hung juries would be so fundamentally unfair that it would violate the constitutional guarantee of due process. The trial court agreed and dismissed the charges with prejudice.^[2]

The Court of Appeals affirmed in a two-to-one decision.^[3] It reasoned that the emotional and financial strain of a third trial would weigh so heavily on defendant that it would violate the defendant's right to due process.^[4] We granted leave to appeal.^[5]

II

On appeal, defendant argues only that the due process guarantees of the state and federal constitutions preclude a third trial on these charges.^[6] The standard of review is de novo with regard to questions of law. People v. Carpentier, 446 Mich. 19, 521 N.W.2d 195 (1994).

The Fourteenth Amendment to the United States Constitution and the Const. 1963, art. 1, § 17 guarantee that no state shall deprive any person of "life, liberty or property, without due process of law."^[7] Textually, only procedural due process is guaranteed by the Fourteenth Amendment; however, under the aegis of substantive due process, individual liberty interests likewise have been protected against "``certain government actions regardless of the fairness of the procedures used to implement them.'" Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992), quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).^[8] The underlying purpose of substantive due process is to secure the individual from the arbitrary exercise of governmental power.^[9] The defendant has failed to distinguish between the Michigan and federal due process provisions and has not argued that the Michigan provision should be interpreted differently from its federal counterpart. We interpret the state provision as coextensive with the federal provision for purposes of this appeal. Absent definitive differences in the text of the state and federal provision, common-law history that dictates different treatment, or other matters of particular state or local interest, courts should reject the "unprincipled creation of state constitutional rights that exceed their federal counterparts." Sitz v. State Police, 443 Mich. 744, 763, 506 N.W.2d 209 (1993).^[10]

III

The defendant relies on five cases in support of the contention that retrial would violate the substantive guarantees of due process: United States v. Ingram, 412 F. Supp. 384 (D.D.C., 1976), State v. Witt, 572 S.W.2d 913 (Tenn., 1978), State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982), State v. Abbati, 99 N.J. 418, 493 A.2d 513 (1985), and People v. Thompson, 424 Mich. 118, 379 N.W.2d 49 (1985). However, none of these cases except Thompson addresses the Due Process Clause in the context of a retrial after a properly declared mistrial,^[11] and Thompson does so only in dicta.^[12] The prosecutor may not abort a trial over a defendant's objection absent manifest necessity, People v. Dawson, 431 Mich. 234, 252, 427 N.W.2d 886 (1988), retry a defendant on higher charges after mistrial in an effort to penalize the defendant, People v. Ryan, 451 Mich. 30, 545 N.W.2d 612 (1996), nolle prosequi charges at trial without leave of court, M.C.L. § 767.29; M.S.A. § 28.969, or retry a defendant after having one full and fair opportunity at obtaining a conviction. Dawson, supra at 250, 427 N.W.2d 886.

Neither the cases cited nor our independent research supports the proposition that the protections of substantive due process require recognition of a remedy for the harm incident to one or more mistrials.^[13] Some courts have declared the inherent authority to preclude retrials following mistrials attributable to jury deadlock. However, we reject the rationale that the administration of justice confers authority on this Court to allocate resources available to law enforcement, Abbati, supra at 429, 493 A.2d 513, or to assess the relative priority of discrete charges in a given community.

IV

The United States Supreme Court has declined to expand substantive due process as an independent source of limitation on government.

In Hurtado v. California, 110 U.S. 516, 527, 4 S. Ct. 111, 28 L. Ed. 232 (1884), it was held that the Fourteenth Amendment Due Process Clause did not make applicable to state governments the Fifth Amendment's requirement of indictment and presentment to a grand jury. The Court posited that Fourteenth Amendment due process encompassed only those safeguards not specifically found in the Bill of Rights. 1 LaFave & Israel, Criminal Procedure (2d ed.), § 2.4(b), p. 55. However, the Court eventually concluded that the Fourteenth Amendment incorporated and made applicable to the states numerous protections contained in the Bill of Rights.^[14]

Other than in matters relating to marriage, family, procreation, and the right to bodily integrity, the Court has been reluctant to expand the scope of substantive due process beyond the explicit textual source of constitutional protection. Albright v. Oliver, 510 U.S. 266, 272, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994). Rather than approaching issues of restriction of government authority in areas of criminal proceedings from the unstructured perspective of "whether, in the view of the Court, the governmental action in question was ``arbitrary,'" id., the Court has deemed restriction of government authority appropriately encompassed by the remedy the framers of the Bill of Rights created.

Although it is unclear at this stage whether the Court will ultimately conclude that substantive due process has been supplanted by specific provisions of the Bill of Rights, see Lewis v. Sacramento Co., 98 F.3d 434 (C.A.9, 1996), cert. gtd.___ U.S. ____, 117 S. Ct. 2406, 138 L. Ed. 2d 173 (1997), it is clear that the Court will not rely on substantive due process to sanction new remedies that duplicate the protections of specific constitutional provisions. Thus, in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), the Court refused to recognize a constitutional remedy under 42 U.S.C. § 1983 on the basis of the assertion that the use of excessive force in making an arrest constituted a violation of substantive due process. The Court held that the remedy for a claim of excessive force during arrest must be determined with reference to the Fourth Amendment as the explicit constitutional standard protecting the asserted interest, rather than the abstract claim of a violation of substantive due process.^[15]

In Collins v. Harker Heights, supra, the Court again underscored its reluctance to expand the doctrine of substantive due process, explaining:

As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.... The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. [Id. at 125, 112 S. Ct. 1061.]^[16]

In Albright v. Oliver, supra at 268-271, 114 S. Ct. 807, the Court similarly declined to recognize a substantive right of due process to be free from criminal prosecution except upon probable cause. Because the first step in alleging a constitutional violation is to identify the specific right infringed, the Court began by reiterating that substantive due process rights have for the most part accorded to "matters relating to marriage, family, procreation, and the right to bodily integrity." Id. at 272, 114 S. Ct. 807. Although the lead opinion was signed by only a plurality of the justices, a majority of the Court joined in the rationale limiting the scope of substantive due process on the ground that

[w]here a particular amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of ``substantive due process' must be the guide for analyzing th[e] claims." [Id. at 273, 114 S.Ct. 807, quoting Graham v. Connor, supra at 395, 109 S. Ct. 1865.]^[17]

V

The contention that the Court should infer a remedy precluding retrial because of "the anxiety, stress, humiliation, and cost to the defendant of continual reprosecution where no new evidence exists"^[18] is a general claim of governmental unfairness. "Every prosecution ... ``is a public act that may seriously ... disrupt [the defendant's] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends,'" Albright, supra at 296, 114 S. Ct. 807 (Stevens, J, dissenting), quoting United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).^[19] Further, if recognized, guidelines for responsible decision making in applying the new remedy would be scarce and open-ended. If three trials are too many under substantive due process, why are not two? It could follow that either any retrial after a mistrial is barred as a violation of substantive due process, or that the theory as applied would result in arbitrary assertion of judicial authority.

VI

The relationship between federal and state governments and that of the state judiciary to its coordinate branches are obviously different. The common concern is the reach and contours of assertion of the power to declare "arbitrary" the conduct of government actors. While the focus of this Court's concern regarding expansive interpretation of our authority has been expressed in terms of separation of powers, rather than the powers reserved for the states under the Tenth Amendment, we have also cautiously responded to requests to recognize new remedies that would limit the authority of the executive or legislative branches of government. We declined the invitation to expand judicial authority in People v. Mateo, 453 Mich. 203, 211, 551, N.W.2d 891 (1996). There, we abstained from deciding whether the harmless error statute was a legislative attempt to supplant judicial authority. We refused to require compliance with sentencing guidelines because the Legislature had not mandated such compliance, People v. Milbourn, 435 Mich. 630, 656-657, 461 N.W.2d 1 (1990), and rejected the claim that circuit courts have the authority to nolle prosequi a case. People v. Curtis, 389 Mich. 698, 711, 209 N.W.2d 243 (1973). "[A]s long as jeopardy has not attached, or the statute of limitations not run, our law permits a prosecutor to reinstate the original charge on the basis of obtaining a new indictment and thus beginning the process anew." Id. at 706, 209 N.W.2d 243. See also People v. Gallego, 430 Mich. 443, 452, 424 N.W.2d 470 (1988) (enforcing an unauthorized promise by the police not to prosecute would undermine the prosecutorial function); Employees & Judge of the Second Dist. Court v. Hillsdale Co., 423 Mich. 705, 723, 378 N.W.2d 744 (1985) (an administrative order to compel funding in excess of appropriations is an improper exercise of judicial power); Genesee Co. Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974) (Genesee Co. Prosecutor II); Genesee Co. Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683, 194 N.W.2d 693 (1972) (Genesee Prosecutor I). Const. 1963, art. 3, § 2 provides:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

We hold that in dismissing this case in the circumstances here presented, the trial judge violated the doctrine of separation of powers.

The amorphous claim endorsed by the trial court and the Court of Appeals would inevitably call for courts to decide what policy of retrial is best for all the people of Michigan. In words equally appropriate to the relationship between the branches of state government and our citizens, Judge Easterbrooke has observed:

Which policy is best for the people ... is a complex question, answered different ways at different times in this nation (and in dramatically different ways by different nations today)—but it is a question about moral and efficient law enforcement for the people to debate and resolve. It is not a question whose only answer must be given by the judicial branch on the basis of "substantive due process." [Mays v. East St. Louis, 123 F.3d 999, 1003 (C.A.7, 1997).]

Finally, absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor. Nor has the case been made that harm to an interest not addressed by specific provisions of the Bill of Rights requires a new remedy. Whatever the reach of substantive due process, this claim does not approach the threshold.^[20] In this context, we find no historical, textual, or empirical foundation that requires inferring a new remedy from the penumbras of substantive due process.

VII

For the reasons stated, we hold that the reprosecution of this defendant is not a violation of the due process guarantees of the Michigan and United States Constitutions, Const. 1963, art. 1, § 17, and U.S. Const., Am. XIV. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings.

MALLETT, C.J., WEAVER, TAYLOR and BRICKLEY, JJ., concur with BOYLE, J.

MICHAEL F. CAVANAGH, Justice (dissenting).

The majority's opinion today attempts to reach a conclusion that decides far more than the case before us. Instead of merely focusing on the task at hand, the majority seeks to effectively sound a death knell for the concept of substantive due process under Const. 1963, art. 1, § 17, and, for that matter, the Fourteenth Amendment of the United States Constitution, in the law of Michigan. Because I cannot agree with the majority's result, or support its far-ranging dicta, I dissent.

I

In People v. Thompson, 424 Mich. 118, 379 N.W.2d 49 (1985), we were presented with the question whether a retrial, following a mistrial because of deadlocked jury, which itself followed the reversal of a jury conviction for legal error, violated, inter alia, the defendant's due process rights. We found that, "[w]hile there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by Const. 1963, art. 1, § 17, or the Fourteenth Amendment to the United States Constitution, this case [was] not one of them." Id. at 133, 379 N.W.2d 49.

In this case, the trial court, relying on our guidance in Thompson, believed that such a case was before it, and dismissed the charges against the defendant following two successive trials that resulted in jury deadlock. The majority, rather than simply correcting the perceived error in the trial judge's application of Thompson, instead beats a wholesale retreat from it, and effectively holds that, in fact, there can never be a case such as we contemplated in Thompson.^[1]

II

Defendant was the owner of a sports equipment store in Garden City. After about six months in business, he increased his insurance coverage on the contents of the store from $50,000 to $75,000. Two weeks later, on June 27, 1990, there was a fire at the store. Defendant left the store at approximately 4:15 p.m. to visit relatives out of town. The fire was reported at 7:15 p.m., and investigators determined it had been smoldering for a couple of hours. Defendant's store suffered considerable damage, and adjacent businesses suffered smoke damage.

The investigation revealed no sign of illegal entry, and burn patterns of flammable liquid appeared on the floor in the area of the fire's origin. At both trials, the defendant pointed out that charcoal grills and lighter fluid were stored in this area, and argued that the investigators had not adequately tested to rule out those items as the cause of the markings.

The defendant was charged with one count of burning of real property^[2] and one count of burning of insured property.^[3] Defendant has apparently been out on bond throughout the proceedings. Defendant's first trial occurred in June 1993 in Detroit Recorder's Court with Judge Andrea J. Ferrara presiding. The trial lasted over parts of ten days. The prosecution apparently produced five expert witnesses, and the defense produced two. The jury could not reach a unanimous verdict, with the jury split ten to two or eight to four in favor of conviction.

The defendant was retried in February 1994, with Judge Samuel A. Turner presiding. The trial lasted approximately the same amount of time as the first, and similar expert witnesses were called by both sides. The jury again deadlocked, this time six to six.

The prosecution announced its intention to again retry the defendant. The defendant moved to dismiss, arguing the likelihood of yet another hung jury and that he would suffer substantial prejudice if retried again.

The motion was heard August 5, 1994, before Recorder's Court Chief Judge Dalton A. Roberson.^[4] Defense counsel argued that witnesses' memories were growing dim, and that defendant had twice been defended by retained counsel and had been forced to retain expert witnesses. The trial court agreed, and dismissed the charges, citing, among other things, the substantial financial prejudice to the defendant. The trial court ruled both on the record and in a written opinion, citing Thompson.

The prosecutor appealed in the Court of Appeals, which affirmed in a published opinion.^[5] A separate opinion agreed with the Court's underlying holding that a due process analysis applied in this situation, but dissented on its application to the instant facts.^[6]

III

While the majority quotes a collection of familiar authority regarding the common woes that befall a defendant who is charged with a crime under any circumstances, no mention is made of the peculiar facts of this case. The defendant was charged with the crime commonly referred to as arson. There was no direct evidence linking him to the fire, and the only indirect evidence that stood for the proposition that a crime had even been committed was the burn patterns on the floor, which indicated the presence of flammable liquids. The defendant came forward with evidence that flammable liquids were routinely stored in this area. This set the stage for a battle of expert witnesses in the field of fire cause and origin.

This case turned entirely on expert testimony. If the jury believed the prosecution's experts, a crime had occurred, and the defendant was the most logical suspect.^[7] If, however, the jury believed the defense experts, no crime had even occurred. In a case such as this, the availability of expert testimony is crucial. While the state has available to it numerous experts in the field of fire cause and origin, the defendant must turn to the private sector, where the rule of supply and demand favors high expert witness fees.

It is here I see a difference between this case and those authorities cited by the majority. It is without dispute that one who is charged with a crime will incur substantial attorney costs. Those who cannot afford an attorney are, of course, provided with assigned counsel. But while the appointment of necessary defense experts is required by statute,^[8] given the majority's past hostility toward the appointment of expert witnesses for the defense,^[9] I would not fault the defendant for finding no comfort in the slight possibility of obtaining appointed experts.

As the Court said in Thompson, due process is violated where there is a "``failure to observe that fundamental fairness essential to the very concept of justice.'"^[10] Because I cannot subscribe to the majority's implication, throughout the dicta contained in part IV of its opinion, that such a concept has no place in the criminal law of this state, I would apply a due process analysis here.

IV

Likewise, the majority's effort regarding the purported applicability of the Fifth Amendment's guarantee against double jeopardy to exclude any due process protection strikes me as misguided. The protection provided in the guarantee against double jeopardy is twofold. "The Clause secures the defendant's interests in (1) the finality of judgments, and (2) protection against multiple prosecutions." People v. Anderson, 409 Mich. 474, 482-483, 295 N.W.2d 482 (1980).

While this case certainly involves multiple prosecutions, the application of the due process analysis is not to the multiple prosecutions per se, but to the underlying result— will the defendant receive a fair trial? In this case, I am convinced that while yet another trial or two may eventually result in the defendant's conviction, there is far too great a likelihood that such a result will directly follow the defendant becoming financially unable to retain experts of sufficient qualifications and capabilities as to adequately advance his theory of the case. The end to the concept of trial by ordeal long predates the law of our state, and I find it to be fundamentally unfair to return to it here.

V

The majority, after misconstruing the underlying issue and attempting to insure that this Court never again faces another claim of a substantive due process in a criminal case, continues still further, finding a violation of the doctrine of separation of powers. It does so following a lengthy list of citations, but scant analysis.^[11]

Again, I find this unpersuasive. The majority believes that "absent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor." Op. at 225. While this Court has often made it clear that there are aspects of a prosecutor's role where the judicial branch has no call to intervene,^[12] I question the "wisdom" of the majority's statement.

Is the Court saying that, absent a specific violation of a specific constitutional provision, it has absolutely no right or duty to insure that a defendant receives a fair trial, or to prevent the prosecution from engaging in egregious conduct? It seems to me that, in actuality, our inherent constitutional authority to oversee the practice and procedure in our courts, Const. 1963 art. 6, § 5, must include some measure of requiring fairness in proceedings. I do not believe that, when one party is the prosecutor, the doctrine of separation of powers requires us to relinquish the inherent control we maintain over the conduct of litigants before our courts.

As we noted in Anderson, when only one of the interests protected by the Double Jeopardy Clause is implicated, we engage in a balancing of the defendant's and the state's interests. Id. at 483-484, 295 N.W.2d 482. Under the majority's analysis, it would seem that, because there is not a complete violation of a specific constitutional provision, we could not do such a thing. I cringe at the volume and breadth of precedent potentially impinged by such an analysis, and take solace only in the fact that it is included in repetitive and cumulative dicta.^[13]

VI

The majority cites People v. Dawson, 431 Mich. 234, 427 N.W.2d 886 (1988), as not allowing the prosecutor to "retry a defendant after having one full and fair opportunity at obtaining a conviction ." Op. at 222. I agree, and recall our unanimous decision in that case, which, in adopting this view, reasoned, "[o]therwise, the state could repeatedly prosecute persons for the same crime, transforming the trial process itself into a punishment and effectively punishing the accused without his having been adjudged guilty of an offense meriting punishment." Dawson at 250-251, 427 N.W.2d 886. Where, as here, the prosecution had not one, but two "full and fair" opportunities to obtain a conviction, and, admittedly, came forward for a third effort with no new evidence, the line marking that transformation of the trial process into an ongoing punishment was crossed.

I would analyze this case in accordance with our past decisions, and, in this case, find that a third retrial would be so prejudicial to the defendant as to violate his right to due process on these particular, and unusual, facts. I find the remainder of the majority's opinion to be both unnecessary and unpersuasive. I dissent.

MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] In the first trial, the jury voted either ten to two in favor of conviction or eight to four in favor of conviction. In the second trial, the jury was evenly divided, with six jurors voting in favor of conviction and six jurors voting in favor of acquittal. While the defendant submits that the juror votes are material to our result, we decline the invitation to decide the issue on this basis. Neither this Court or any other court has obligated jurors to disclose their votes other than in the context of confirming that they agree with a verdict reported as unanimous. It follows that we have not recognized a right on behalf of either the prosecution or the defense to such information.

[2] The trial court concluded that retrial would be fundamentally unfair because 1) two prior trials had resulted in jury deadlock, 2) the prosecutor had no new evidence to offer against the defendant, 3) the likelihood of a third hung jury was high because there was no new evidence against the defendant, and 4) retrial would be an inefficient use of judicial resources.

[3] 219 Mich.App. 127, 555 N.W.2d 728 (1996).

[4] The dissenting judge agreed that due process guarantees may require dismissal of the charges against a defendant over the prosecutor's objection under certain circumstances, but argued that this defendant's right to due process would not be violated to such a degree that dismissal was justified. Id. at 136, 555 N.W.2d 728.

[5] 456 Mich. 519, 562 N.W.2d 781 (1997).

[6] Defendant concedes that his rights under the Double Jeopardy Clause have not been violated by the repeated trials. See Richardson v. United States, 468 U.S. 317, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984); People v. Thompson, 424 Mich. 118, 125, 379 N.W.2d 49 (1985).

[7] The express language of the Fourteenth Amendment of the United States Constitution provides:

Nor shall any State deprive any person of life, liberty, or property, without due process of law....

Const. 1963, art. 1, § 17 provides:

No person shall be ... deprived of life, liberty or property, without due process of law.

[8] For further recognition that the Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights, see United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).

[9] See Foucha v. Louisiana, 504 U.S. 71, 78, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992); see also Fallon, Some confusions about due process, judicial review, and constitutional remedies, 93 Col. L.R. 309, 310 (1993).

[10] Factors to be considered when determining whether a state constitutional provision affords protection different from its federal counterpart include "1) the textual language of the state provision, 2) significant textual differences between provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest." Sitz, supra at 763, n. 14, 506 N.W.2d 209.

[11] In Ingram, supra, the court held that dismissal of an indictment after the defendant's second mistrial was required in the "interests of justice" as "simply a matter of fair play." Id. at 385-386. The Due Process Clause was not addressed by the court.

In Witt, supra, the Tennessee Supreme Court barred retrial of a defendant whose indictments for first-degree murder were dismissed after three juries failed to reach unanimous verdicts. After finding that the constitutional right to due process was not involved, the court relied on the trial courts' "inherent authority" to terminate prosecutions in the exercise of "sound judicial discretion." Id. at 917.

Likewise, in Moriwake, supra, the Due Process Clause was not addressed when the court concluded that judges have inherent power to dismiss an indictment with prejudice over the objection of the prosecution where two mistrials were declared because the respective juries were unable to reach verdicts. Id. at 56, 647 P.2d 705.

Lastly, in Abbati, supra, the court did address the Due Process Clause, but rested its decision on the trial court's inherent right to dismiss an indictment with prejudice over the prosecutor's objection.

[12] In Thompson, the defendant's third trial resulted in a conviction for felony murder after the defendant's first conviction was reversed and a second trial ended in a mistrial. On appeal, the defendant argued that retrial after a mistrial violated the Double Jeopardy Clause of the Michigan Constitution, art. 1, § 15 or the Due Process Clauses of the state and federal constitutions. We held that neither constitutional provision was violated, while observing that "there may be cases in which repeated retrials after repeated jury deadlock might be so fundamentally unfair as to violate the due process guaranteed by Const. 1963, art. 1,§ 17, or the Fourteenth Amendment to the United States Constitution...." Id. at 133, 379 N.W.2d 49.

[13] See People v. Cummings, 47 Ill.App.3d 578, 581, 5 Ill. Dec. 944, 362 N.E.2d 415 (1977) (the number of trials is not a violation of due process unless it also places the defendant in double jeopardy); Ex Parte Anderson, 457 So. 2d 446 (Ala., 1984) (the defendant's due process rights were not breached by a fourth trial on capital murder charges when three earlier trials each resulted in mistrial); State v. Paige, 256 N.J.Super. 362, 370, 607 A.2d 164 (1992) (a third trial, where two juries had failed to reach a verdict and where no new evidence was offered against the defendant, did not violate the principles of fundamental fairness). We are not aware of any United States Supreme Court or federal Court of Appeals decision that has held that retrial after a properly declared mistrial where no new evidence is offered violates the federal Due Process Clause.

For an accounting of cases that have held that retrial after a properly declared mistrial did not violate substantive due process guarantees but would violate general principles of "fairness," see Ingram, supra at 385 (making no reference to the Due Process Clause, the court concluded that the question was simply a matter of fair play); Witt, supra at 917 (after expressly stating that the Due Process Clause was not applicable to the case, the court held that requiring defendants to face juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice); United States v. Rossoff, 806 F. Supp. 200, 202 (C.D.Ill., 1992) (without explicitly relying on the Due Process Clause, the court held that an indictment may be dismissed with prejudice if a court determines that retrial is against the concept of fundamental fairness).

[14] See Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (the Fourth Amendment's exclusionary rule was made applicable to the states), Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (the Sixth Amendment's right to counsel was made applicable to the states), Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964) (the Fifth Amendment's privilege against self-incrimination was made applicable to the states), Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967) (made applicable the Sixth Amendment speedy trial right), Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (made applicable the right to compulsory process), Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (made applicable the Sixth Amendment right to trial by jury), and Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (applied the Double Jeopardy Clause of the Fifth Amendment to the states). For an overview of the rights that have been incorporated and the rationale for incorporation, see Tribe, American Constitutional Law (2d ed.), § 11-2, p. 772.

[15] The Court held:

Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims. [Graham, supra at 395, 109 S. Ct. 1865.]

[16] In Collins, the Court rejected the petitioner's claim under 42 U.S.C. § 1983 that municipal employees had a right under the Fourteenth Amendment Due Process Clause to be free from unreasonable risks of harm in the workplace. The Court noted its reluctance to expand the doctrine of substantive due process, stating that Congress intended the Due Process Clause to prevent the government from arbitrarily exercising its power, not to guarantee minimal levels of safety and security in the workplace. Id. at 126, 112 S. Ct. 1061.

[17] See Wells, Constitutional torts, common-law torts, and due process of law, 72 Chi-Kent L.R. 617, 643 (1997) (the Court in Graham, Albright, and Collins does not propose to abandon substantive due process, only to avoid it whenever possible).

[18] 219 Mich.App. at 134, 555 N.W.2d 728.

To support his position defendant relies on Green v. United States, 355 U.S. 184, 187-188, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), in which the Supreme Court stated:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The rationale of Green is inapposite because Green involved not a case of continuing jeopardy, as is involved here, but rather a case of double jeopardy. Moreover, the Supreme Court expressly recognized that jeopardy does not bar a second trial under circumstances where a jury has failed to reach a verdict, stating:

At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where "unforeseeable circumstances...arise during (the first) trial making its completion impossible, such as the failure of a jury to agree on a verdict."

[19] See also United States v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982), in which the Court identified the interests served by the Speedy Trial Clause of the Sixth Amendment. The Court stated:

"Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.... Certainly the knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life. [Id. at 8-9, 102 S. Ct. 1497.]

[20] We take judicial notice of the facts of People v. Fisher, 220 Mich.App. 133, 559 N.W.2d 318 (1996), in which the defendant was tried four times before pleading no contest to charges that he murdered his wife. The defendant was twice found guilty of the death of his wife, who was found wrapped with duct tape in their home. Both convictions were overturned. People v. Fisher, 439 Mich. 884, 476 N.W.2d 889 (1991). In the defendant's third trial, a mistrial was declared when the jurors were unable to reach a verdict. In a fourth trial, yet another mistrial was declared because of jury deadlock. The defendant entered a plea of no contest as the prosecutors prepared to try the defendant a fifth time. Were the retrial of the respondent in the instant case foreclosed because of substantive due process guarantees, arguably all retrials where two mistrials were previously declared and where no new evidence was offered against the accused would also be foreclosed.

[1] I note that the author of Thompson is also the author of the majority opinion today. While the majority dismisses the quoted passage of Thompson as dicta, I should make two points. The first is that I argue not that this portion of Thompson is controlling, but rather, that prudence indicates that we take the same course as we did then, i.e., again, if this is not such a case, it still remains possible one might come before us.

Second, to the extent those in the majority would dismiss this language as merely ill-advised dicta, an assertion I disagree with, I note they still insist on attempting to stretch the instant opinion to cover a variety of situations not before the Court. To the extent one credits the majority's disregard of nearly all the analysis included in part III of Thompson, to be at all consistent, one would have to seriously question the inclusion of at least parts IV through VI of the majority's opinion, all of which are unnecessary to the decision today, as it is already controlled by the analysis in parts II and III of the majority's opinion.

[2] M.C.L. § 750.73; M.S.A. § 28.268.

[3] M.C.L. § 750.75; M.S.A. § 28.270.

[4] While the motion was argued by the same defense counsel and assistant prosecutor as appeared in the second trial (neither of whom had participated in the first trial), it was argued before Chief Judge Roberson, whose only prior involvement with the case was in hearing some pretrial motions. While, ordinarily, the judge who presided at trial would be in the best position to evaluate complaints such as those presented by the defendant, it appears the Chief Judge here demonstrated adequate familiarity with the prior proceedings in this matter.

[5] 219 Mich.App. 127, 555 N.W.2d 728 (1996).

[6] Id. at 136, 555 N.W.2d 728, McDonald, J. (concurring in part and dissenting in part).

[7] Recall, however, that the defendant also presented an alibi defense.

[8] M.C.L. § 775.15; M.S.A. § 28.1252.

[9] See People v. Jacobsen, 448 Mich. 639, 532 N.W.2d 838 (1995), where the Court, over the dissent of Justice Levin and this author, peremptorily reversed a decision of the Court of Appeals, which, over the dissent of another of my brethren when he was sitting on that Court, required the appointment of an expert witness in a case where the expert's testimony was the sole avenue available for the defense to dispute the offense charged.

[10] Thompson at 133, 379 N.W.2d 49, quoting Dodge v. Detroit Trust Co., 300 Mich. 575, 618, 2 N.W.2d 509 (1942).

[11] I pause to take issue with my sister Boyle's favorite (mis)quote of People v. Milbourn, 435 Mich. 630, 656-657, 461 N.W.2d 1 (1990), stating that we refuse to require compliance with the sentencing guidelines because the Legislature has not mandated such compliance. If one merely, instead of reading only the sentence quoted, continues on to the following sentence and paragraph, it is apparent that the entire discussion concerned the fact that we, of course, have always allowed departures from the sentencing guidelines. We have, however, certainly required their use. See Administrative Order No. 1988-4. My sister continues in her confusion between the federal guidelines and Michigan's, at least as far as the concept of "require[d] compliance" is concerned.

[12] See Genesse Co. Prosecutor v. Genesse Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974) (Genesse Co. Prosecutor II); Genesse Co. Prosecutor v. Genesse Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972) (Genesse Prosecutor I).

[13] Before I depart from this section of the majority's opinion, I note the context of the lengthy quotation from Mays v. East St. Louis, 123 F.3d 999, 1003 (C.A.7, 1997), purported to be "equally appropriate to the relationship between the branches of state government and our citizens." Op. at 225. While the quotation proclaims the virtue of majority rule over court decisions of substantive due process, Mays involved a claim of due process violations by injured and killed passengers in a vehicle that crashed while fleeing from a high-speed police pursuit. The context of the quotation is a discussion of weighing the dangers of a police pursuit with the dangers of letting criminals escape. I fail to see the parallel between this and anything decided today, other than perhaps an inclination, apparently shared by the majority, to assault the very concept of substantive due process on every ground imaginable.

I also question the presence of People v. Fisher, 220 Mich.App. 133, 559 N.W.2d 318 (1996). The majority's opinion takes "judicial notice" of the facts of this rather severe case. defendant, a physician, was twice found guilty of the death of his wife, who was found wrapped in duct tape in their home. Both convictions were overturned. Two subsequent trials resulted in deadlocked juries. The defendant pleaded no contest just before a fifth trial. The opinion states that a holding for the defendant would mean that, arguably, all retrials where two mistrials have occurred would be prevented. Defendant did not argue this, neither the trial court nor the Court of Appeals held this, and I do not believe even the prosecution forecast this gloomy scenario, which would seem objectionable to all and would require as severe an abdication of any analysis of substantive due process as the majority undertakes today, but in the opposite direction. I certainly endorse no such thing.