CA: Double jeopardy does not bar retrial where prosecutor's misconduct was not intended to provoke mistrial

In re Gorghan v Patricia DeAngelis, 2006 NY Slip Op 07516 [available here]

Even in cases of extreme and "deplorable" prosecutorial misconduct that results in reversal on appeal, a re-trial is not barred by double jeopardy unless it can be shown the prosecutor "deliberately intended to provoke a mistrial motion." So held the Court of Appeals last week in Gorghan v Patricia DeAngelis. I'm a little late on this one, but Nicole at Sui Generis has a breakdown of the decision here. I have always thought of this rule in terms of Madden football. Say you and your buddy are playing against each other in a game of Madden. The score is tied in the waning moments of the game. If while you are trying to kick the game winning field goal your buddy punches you in the face and causes you to miss, then that's the Gorghan case--your friend cheated, but he did it so he would have a chance to get the ball back and win a close game. The only fair thing to do in that case is to reset the game and play it again, with no punching involved. But what if you are beating your friend 42-0 in the last two minutes of the game, and your friend "accidentally" unplugs the Playstation? That's the Davis v Brown case (cited by the Court in Gorghan), and the proper remedy is to let the all-but-assured victory stand. The cheater does not get a second bite at the apple in that situation.

I can't believe Judge Kaye's decision didn't draw this analogy.