{ "id": 4305592, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVAN GRIFFITH, Defendant-Appellant", "name_abbreviation": "People v. Griffith", "decision_date": "2010-09-30", "docket_number": "No. 1\u201409\u20141001", "first_page": "1072", "last_page": "1088", "citations": [ { "type": "official", "cite": "404 Ill. App. 3d 1072" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468967, 6469608, 6469353, 6468711, 6468624, 6468465, 6468240, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-08", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-06", "/us/459/1018-05", "/us/459/1018-03", "/us/459/1018-01", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "859 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "\"The scope of review of an order in a Rule 604(f) appeal is limited to a former jeopardy analysis ***\"" } ], "opinion_index": 0 }, { "cite": "368 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266596 ], "year": 2006, "pin_cites": [ { "page": "941", "parenthetical": "\"The scope of review of an order in a Rule 604(f) appeal is limited to a former jeopardy analysis ***\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0934-01" ] }, { "cite": "377 U.S. 463", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170590 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "466" }, { "page": "451" }, { "page": "1589" } ], "opinion_index": 0, "case_paths": [ "/us/377/0595-01" ] }, { "cite": "934 F.2d 110", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536055 ], "year": 1991, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/f2d/934/0110-01" ] }, { "cite": "121 F.3d 1078", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 285073 ], "year": 1997, "pin_cites": [ { "page": "1086" } ], "opinion_index": 0, "case_paths": [ "/f3d/121/1078-01" ] }, { "cite": "724 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "retrial ordered against claim that \"conduct of State's prosecutors *** was so improper and abusive that defendant was denied a fair trial\" raising doubt of the constitutionality of the defendant's trial" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 99", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224818 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "119-20", "parenthetical": "retrial ordered against claim that \"conduct of State's prosecutors *** was so improper and abusive that defendant was denied a fair trial\" raising doubt of the constitutionality of the defendant's trial" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0099-01" ] }, { "cite": "705 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "\"A *** defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial ***\"" } ], "opinion_index": 0 }, { "cite": "185 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121977 ], "year": 1998, "pin_cites": [ { "page": "214", "parenthetical": "\"A *** defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial ***\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0179-01" ] }, { "cite": "355 U.S. 184", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164126 ], "weight": 6, "year": 1957, "pin_cites": [ { "page": "187-88" }, { "page": "204" }, { "page": "223" }, { "page": "187-88" }, { "page": "204" }, { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/us/355/0184-01" ] }, { "cite": "851 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "parenthetical": "\"this court has, on occasion, departed from strict lockstep interpretation when circumstances warrant\"" } ], "opinion_index": 0 }, { "cite": "221 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703639 ], "year": 2006, "pin_cites": [ { "page": "299", "parenthetical": "\"this court has, on occasion, departed from strict lockstep interpretation when circumstances warrant\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0282-01" ] }, { "cite": "466 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "declining to apply the older Pendleton standard and applying the stricter standard of Kennedy instead" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 796", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633493 ], "year": 1984, "pin_cites": [ { "page": "798-99", "parenthetical": "declining to apply the older Pendleton standard and applying the stricter standard of Kennedy instead" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0796-01" ] }, { "cite": "394 N.E.2d 496", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "retrial may be precluded for misconduct \"motivated by bad faith or undertaken to harass or prejudice the accused\"" } ], "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3272073 ], "year": 1979, "pin_cites": [ { "page": "593", "parenthetical": "retrial may be precluded for misconduct \"motivated by bad faith or undertaken to harass or prejudice the accused\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0580-01" ] }, { "cite": "902 N.E.2d 677", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "\"The appellate court lacks authority to overrule decisions of this court, which are binding on all lower courts\"" } ], "opinion_index": 0 }, { "cite": "232 Ill. 2d 156", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3619690 ], "year": 2009, "pin_cites": [ { "page": "164", "parenthetical": "\"The appellate court lacks authority to overrule decisions of this court, which are binding on all lower courts\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/232/0156-01" ] }, { "cite": "91 Haw. 405", "category": "reporters:state", "reporter": "Haw.", "case_ids": [ 12265294 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/haw/91/0405-01" ] }, { "cite": "139 Ariz. 98", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 719996 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ariz/139/0098-01" ] }, { "cite": "295 Or. 260", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2187197 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/or/295/0260-01" ] }, { "cite": "509 F.3d 851", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3331141 ], "year": 2007, "pin_cites": [ { "page": "857" } ], "opinion_index": 0, "case_paths": [ "/f3d/509/0851-01" ] }, { "cite": "514 Pa. 10", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1804598 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "23", "parenthetical": "Flaherty, J. concurring" }, { "page": "544", "parenthetical": "Flaherty, J. concurring" } ], "opinion_index": 0, "case_paths": [ "/pa/514/0010-01" ] }, { "cite": "532 Pa. 177", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1835908 ], "weight": 8, "year": 1992, "pin_cites": [ { "page": "180-81" }, { "page": "322" }, { "page": "179" }, { "page": "323" }, { "page": "186" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/pa/532/0177-01" ] }, { "cite": "122 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322311 ], "weight": 12, "opinion_index": 0, "case_paths": [ "/nm/122/0655-01" ] }, { "cite": "103 S. Ct. 379", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 512", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "683 F.2d 769", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 533897 ], "year": 1982, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/f2d/683/0769-01" ] }, { "cite": "198 Ariz. 390", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 274446 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "392" }, { "page": "1179" } ], "opinion_index": 0, "case_paths": [ "/ariz/198/0390-01" ] }, { "cite": "979 F.2d 912", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10517230 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "916", "parenthetical": "\"[t]here is no justification for [the] distinction\" between a defendant who moves successfully for a mistrial and one whose conviction is reversed on appeal" }, { "page": "916" }, { "page": "916", "parenthetical": "defendant's case does not fall under new double jeopardy standard urged by the defendant" } ], "opinion_index": 0, "case_paths": [ "/f2d/979/0912-01" ] }, { "cite": "386 A.2d 918", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1740563 ], "year": 1978, "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/pa/478/0251-02" ] }, { "cite": "478 Pa. 251", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1740563, 1740539 ], "year": 1978, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/pa/478/0251-02", "/pa/478/0251-01" ] }, { "cite": "500 N.E.2d 14", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "114 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542884 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "130" }, { "page": "129" }, { "page": "130" }, { "page": "131" }, { "page": "131" }, { "page": "129" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0125-01" ] }, { "cite": "491 N.E.2d 1163", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "112 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538577 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "86" }, { "page": "86" }, { "page": "86" }, { "page": "86" }, { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0078-01" ] }, { "cite": "456 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189962 ], "weight": 18, "year": 1982, "pin_cites": [ { "page": "673" }, { "page": "423" }, { "page": "2088", "parenthetical": "\"one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him\"" }, { "page": "688" }, { "page": "432-33" }, { "page": "2096", "parenthetical": "Stevens, J., concurring" }, { "page": "676" }, { "page": "425" }, { "page": "2089", "parenthetical": "\"Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion\"" }, { "page": "680" }, { "page": "428" }, { "page": "2091", "parenthetical": "Brennan, J., concurring, joined by Marshall, J." } ], "opinion_index": 0, "case_paths": [ "/us/456/0667-01" ] }, { "cite": "873 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "375 Ill. App. 3d 728", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272485 ], "year": 2007, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/0728-01" ] }, { "cite": "812 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "349 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435351 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "174" }, { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0172-01" ] }, { "cite": "830 N.E.2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135762 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "870" }, { "page": "870", "parenthetical": "applying de novo review where the only issue is whether the defendant's actions constituted a single act precluding more than one prosecution for double jeopardy purposes" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0868-01" ] }, { "cite": "830 N.E.2d 846", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136039 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "868", "parenthetical": "no cognizable double jeopardy claim based on the granting of a new trial because it is not the functional equivalent of a mistrial" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0863-01" ] }, { "cite": "85 C 6850", "category": "reporters:state", "reporter": "Cow.", "opinion_index": 0 }, { "cite": "507 U.S. 619", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235767 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/507/0619-01" ] }, { "cite": "25 F.3d 875", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10513591 ], "year": 1994, "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/f3d/25/0875-01" ] }, { "cite": "267 F.3d 966", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9500090 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/f3d/267/0966-01" ] }, { "cite": "28 U.S.C. \u00a72254", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "opinion_index": 0 }, { "cite": "794 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "collateral estoppel bars relitigation of an issue decided in a prior case, including the defendant's federal habeas corpus proceedings" } ], "opinion_index": 0 }, { "cite": "206 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578232 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "396-97" }, { "page": "396-97", "parenthetical": "collateral estoppel bars relitigation of an issue decided in a prior case, including the defendant's federal habeas corpus proceedings" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0381-01" ] }, { "cite": "477 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205694 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "181" }, { "page": "157" }, { "page": "2471" }, { "page": "181" }, { "page": "157" }, { "page": "2471" } ], "opinion_index": 0, "case_paths": [ "/us/477/0168-01" ] }, { "cite": "587 F. Supp. 2d 899", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3220240 ], "weight": 14, "year": 2008, "pin_cites": [ { "page": "911, 912-13", "parenthetical": "mem. op." }, { "parenthetical": "unpublished order under Supreme Court Rule 23" }, { "page": "906" }, { "page": "912" }, { "page": "906" }, { "page": "904" }, { "page": "901" }, { "page": "911" }, { "page": "912" }, { "page": "912-13" }, { "page": "914" }, { "page": "914" }, { "page": "914" }, { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/587/0899-01" ] }, { "cite": "777 N.E.2d 459", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 98", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521895 ], "weight": 28, "year": 2002, "pin_cites": [ { "page": "119" }, { "page": "121" }, { "parenthetical": "unpublished order under Supreme Court Rule 23" }, { "page": "117" }, { "page": "117" }, { "page": "117" }, { "page": "117" }, { "page": "117" }, { "page": "118" }, { "page": "117" }, { "page": "118" }, { "page": "118" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "117" }, { "page": "117" }, { "page": "118" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119", "parenthetical": "\"no rational jury could have found the defendant not guilty of felony murder\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0098-01" ] } ], "analysis": { "cardinality": 1532, "char_count": 41994, "ocr_confidence": 0.784, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36604412071900716 }, "sha256": "24206cb479efc9c6f8853f7af5463c90e04b2a081ee7427f0edecf03b2f9bcbb", "simhash": "1:caf2afc6269a4d2f", "word_count": 6888 }, "last_updated": "2023-07-14T16:58:54.131587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVAN GRIFFITH, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GARCIA\ndelivered the opinion of the court:\nDefendant Evan Griffith was convicted of felony murder in a jury trial in 1999, during which, according to the published opinion of this court, prosecutor Laura Morask engaged in numerous instances of prosecutorial misconduct, which \u201ccalled into question the State\u2019s commitment to fair and just enforcement of the law.\u201d People v. Griffith, 334 Ill. App. 3d 98, 119, 777 N.E.2d 459 (2002). Nevertheless, \u201cthe overwhelming evidence in support of the felony murder charge *** constrained [this court] to affirm Griffith\u2019s conviction and sentence.\u201d Griffith, 334 Ill. App. 3d at 121. In 2008, a federal district court, quoting at length from the scathing review by this court of the prosecutor\u2019s trial conduct, granted the defendant\u2019s petition for a writ of habeas corpus and ordered a new trial. The district court found prosecutor Laura Morask\u2019s \u201cmisconduct \u2018so infected the trial with unfairness as to make the resulting conviction a denial of due process.\u2019 \u201d United States ex rel. Griffith v. Hulick, 587 F. Supp. 2d 899, 911, 912-13 (N.D. Ill. 2008) (mem. op.), quoting Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 157, 106 S. Ct. 2464, 2471 (1986). The State did not appeal the grant of the defendant\u2019s petition, but instead obtained a new indictment against the defendant. Before the circuit court of Cook County, the defendant filed a motion to dismiss the new indictment on double jeopardy and due process grounds, which Judge John J. Fleming denied. Before this court, in his interlocutory appeal, the defendant concedes \u201cthe current case law in Illinois would not apply the Double Jeopardy bar to his case\u201d because both the Supreme Court of the United States and the Illinois Supreme Court require the intent behind the prosecutor\u2019s misconduct be to goad the defendant into seeking a mistrial to trigger the double jeopardy bar to a retrial. He urges that we read the double jeopardy clause of the Illinois Constitution much as the supreme courts of Oregon, Arizona, New Mexico, Pennsylvania, and Hawai\u2019i, have read their respective constitutional double jeopardy provisions to provide expanded protection to bar a retrial when \u201cintentional and systematic\u201d prosecutorial misconduct deprives a defendant of fundamental fairness at trial. The State responds that only our supreme court can change current law and that under existing Illinois law, Illinois courts have repeatedly found unavailing similar claims based on prosecutorial misconduct for failure to demonstrate the prosecution intended to cause a mistrial. We agree with the State. The defendant\u2019s retrial is not barred under current Illinois law, by which we are bound. We do not consider the defendant\u2019s separate due process claim because it is not subject to review on interlocutory appeal. We affirm.\nBACKGROUND\nThis case has now been recounted in multiple court decisions during its more than decade-long history: Griffith, 587 F. Supp. 2d 899; People v. Griffith, No. 1 \u2014 03\u20140713 (March 22, 2005) (unpublished order under Supreme Court Rule 23); Griffith, 334 Ill. App. 3d 98; and People v. Griffith, No. 1 \u2014 96\u20140112 (April 24, 1997) (unpublished order under Supreme Court Rule 23). We relate only the procedural history and the facts necessary to address the issue before us. As the defendant asserts, many of the facts are beyond dispute under the doctrine of collateral estoppel, citing People v. Tenner, 206 Ill. 2d 381, 396-97, 794 N.E.2d 238 (2002).\nOn May 11, 1985, 16-year-old Evan Griffith stabbed and killed 46-year-old Leroi Shanks, a former neighbor who had permitted the homeless Griffith to stay with him in exchange for sexual favors. In 1986, Griffith pleaded guilty to murdering Shanks and received a 35-year sentence.\nThe defendant filed a postconviction petition, contending he pleaded guilty and accepted the 35-year sentence because he was told that he was otherwise eligible for the death penalty. He later learned, however, that he was not death-penalty eligible because he was a minor at the time of the offense. His conviction, arising from an involuntary plea of guilty, was vacated, and a new trial ordered. Griffith, No. 1 \u2014 96\u20140112.\nProsecutorial Misconduct\nIn 1999, the defendant proceeded to a jury trial on the 1985 murder of Shanks. The defendant claimed self-defense. During his testimony, he suggested that his actions were motivated by fear that Shanks would kill him, hurt him, or sexually abuse him, when Shanks, returning home, found the defendant had broken into a safe Shanks kept in his home. The State and the defendant presented various experts regarding the defendant\u2019s mental state at the time of the killing.\nLead prosecutor Laura Morask sought the trial court\u2019s permission to examine the defendant and his expert witness regarding a 1990 incident that occurred while the defendant was incarcerated for Shanks\u2019 murder. In that incident, the defendant was tried and convicted before a jury of killing a fellow inmate and was sentenced to death. Prosecutor Morask told the court it was necessary to inquire into the 1990 incident to negate the defense theory that the defendant was influenced by post-traumatic stress disorder (PTSD) when he killed Shanks. Griffith, 334 Ill. App. 3d at 117. She claimed the State\u2019s expert had examined the 1990 records and found them relevant to rebut the PTSD defense. The trial court expressed concern that evidence of the 1990 incident would unduly prejudice the defendant, but nonetheless allowed the prosecutor to raise the 1990 incident based on her representation that she would \u201c \u2018sanitize\u2019 \u201d the evidence and avoid calling the 1990 incident a \u201cmurder.\u201d Griffith, 334 Ill. App. 3d at 117. She stated, \u201c \u2018We don\u2019t have to go into that the victim died, what his sentence was, or any of that. *** We don\u2019t have to put in the fact that he was in prison when the stabbing occurred.\u2019 \u201d Griffith, 334 Ill. App. 3d at 117.\nThe State\u2019s expert had in fact never seen records of the 1990 incident and knew nothing about them. Griffith, 334 Ill. App. 3d at 117. On cross-examination of the defendant\u2019s expert, the prosecutor broke her promise not to reference the 1990 \u201cmurder.\u201d Griffith, 334 Ill. App. 3d at 117. In the ensuing sidebar, she moved to strike her remark and then referenced \u201cthe 1990 murder\u201d during closing argument. Griffith, 334 Ill. App. 3d at 118. The prosecutor also intimated on cross-examination of the defendant that the 1990 incident took place in a prison. Griffith, 334 Ill. App. 3d at 117.\nThe trial court had prohibited the prosecution from informing the jury that the 1990 incident had resulted in a conviction, but the prosecutor noted on cross-examination of the defendant\u2019s expert that the expert had been hired after the 1990 incident \u201c \u2018to lessen [someone\u2019s] sentence.\u2019 \u201d Griffith, 334 Ill. App. 3d at 118. According to the trial court\u2019s instructions, the jury was not to know the defendant had been sentenced to death for the 1990 murder, but upon cross-examination of another defense expert, the prosecutor indicated the expert had previously been retained in another case by the \u201cCapital Resource Center,\u201d and stated the Center \u201c \u2018deals with trying to get a prisoner not to get the death penalty.\u2019 \u201d Griffith, 334 Ill. App. 3d at 118.\nDuring her rebuttal argument, the prosecutor likened the defendant to \u201c \u2018walking barbeque tongs.\u2019 \u201d Griffith, 334 Ill. App. 3d at 119. Regarding the 1990 killing, she argued the defendant just \u201c \u2018stuck his arm out and [the victim] just happened to fall onto the knife.\u2019 \u201d Griffith, 334 Ill. App. 3d at 119. With that skill, the defendant could be \u201c \u2018worth a lot of money. You would put him near your barbeque and hot dogs and hamburgers just fly on and get poked by him.\u2019 \u201d Griffith, 334 Ill. App. 3d at 119. She compared the defendant to \u201c \u2018a grenade in a baby carriage\u2019 \u201d that \u201c \u2018explodes in your face\u2019 \u201d (Griffith, 587 F. Supp. 2d at 906), and called him a \u201c \u2018deranged Energizer bunny\u2019 \u201d (Griffith, 587 F. Supp. 2d at 912). She said that accepting the argument by defense counsel would give the defendant a \u201c \u2018license to kill\u2019 \u201d and individuals like defense counsel were \u201c \u2018the reason Shakespeare said let\u2019s kill all the lawyers.\u2019 \u201d Griffith, 334 Ill. App. 3d at 119. She called the defendant\u2019s witnesses \u201c \u2018a joke,\u2019 \u201d \u201c \u2018ridiculous,\u2019 \u201d and \u201c \u2018pathetic.\u2019 \u201d Griffith, 587 F. Supp. 2d at 906.\nThe defendant moved for a mistrial several times during the trial, with the trial court denying each motion. Griffith, 587 F. Supp. 2d at 904. The jury found the defendant guilty of felony murder and armed robbery. He was sentenced to life in prison without the possibility of parole.\nThe Appeals\nThe defendant appealed his conviction, arguing, among other claims, that he was denied due process and a fair trial because the lead prosecutor committed numerous instances of misconduct, in particular, her use of the 1990 killing by the defendant. We found \u201cthe prosecutor had no intention of limiting evidence of the 1990 killing to the question of whether Griffith had PTSD in 1985.\u201d Griffith, 334 Ill. App. 3d at 117. The prosecutor had used the 1990 killing \u201cto convince the jury Griffith was a violent and dangerous man who had a propensity to kill with a knife.\u201d Griffith, 334 Ill. App. 3d at 117. \u201c[Defense] [objections were made, some sustained, some overruled. It didn\u2019t matter. Nothing stopped this prosecutor.\u201d Griffith, 334 Ill. App. 3d at 118. The \u201cprosecutor\u2019s behavior *** called into question the State\u2019s commitment to fair and just enforcement of the law.\u201d Griffith, 334 Ill. App. 3d at 119.\nNevertheless, the overwhelming evidence constrained us to affirm the defendant\u2019s conviction \u201cdespite the intentional and systematic misconduct of the prosecutor.\u201d Griffith, 334 Ill. App. 3d at 119. \u201cNot only did Griffith tell three friends, the arresting police officers, and the assistant State\u2019s Attorney he killed Shanks for the money, he made what amounts to a judicial confession when he testified at trial.\u201d Griffith, 334 Ill. App. 3d at Ill. We found, \u201cno rational jury could have found the defendant not guilty of felony murder.\u201d Griffith, 334 Ill. App. 3d at 119.\nFollowing our decision, the defendant\u2019s initial pro se postconviction petition alleging numerous instances of ineffective assistance of counsel was summarily dismissed. Griffith, No. 1 \u2014 03\u20140713, slip op. at 7. We affirmed the dismissal because no prejudice could be shown in light of the \u201cevidence at trial overwhelmingly in favor of conviction.\u201d Griffith, No. 1 \u2014 03\u20140713, slip op. at 7.\nThe defendant then brought a petition for a writ of habeas corpus before the federal district court pursuant to 28 U.S.C. \u00a72254 (2006). The district court found the facts of the case as set forth in Griffith, 334 Ill. App. 3d 98, to be uncontroverted, which it repeated, along with some additional, uncontroverted facts gleaned from the record. Griffith, 587 F. Supp. 2d at 901. The court found the record \u201cconfirms many times over the Appellate Court\u2019s finding of repeated, deliberate prosecutorial misconduct.\u201d Griffith, 587 F. Supp. 2d at 911. It found the prosecutor\u2019s \u201cdehumanizing [rhetoric] *** was leveraged by her misuse of the 1990 crime evidence, the admission of which she had obtained on false premises.\u201d Griffith, 587 F. Supp. 2d at 912. The court concluded the defendant\u2019s conviction was a \u201c \u2018denial of due process\u2019 \u201d that \u201cdeprived Mr. Griffith of a fair trial.\u201d Griffith, 587 F. Supp. 2d at 912-13, quoting Darden, 477 U.S. at 181, 91 L. Ed. 2d at 157, 106 S. Ct. at 2471.\nThe court found the trial error was not subject to harmless error analysis, but rather required automatic reversal because \u201c \u2018 \u201cthe integrity of the proceeding was so infected that the entire trial was unfair.\u201d \u2019 \u201d Griffith, 587 F. Supp. 2d at 914, quoting Phillips v. Woodford, 267 F.3d 966, 986 n.14 (9th Cir. 2001), quoting Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir. 1994). \u201cTo excuse the prosecutor\u2019s lies to the court, misuse of evidence, and other misconduct in this case would indeed render meaningless the principle that every defendant has a right to a fair trial.\u201d Griffith, 587 F. Supp. 2d at 914, citing Brecht v. Abrahamson, 507 U.S. 619, 638 n.9, 123 L. Ed. 2d 353, 373 n.9, 113 S. Ct. 1710, 1722 n.9 (1993). The court granted the defendant\u2019s petition for a writ of habeas corpus. Griffith, 587 F. Supp. 2d at 914.\nAfter she granted the writ, Judge Bucklo of the federal district court entered an order on November 20, 2008, that the defendant be \u201creleased from custody on the judgment of conviction entered by the Circuit Court of Cook County in case number 85 C 6850 unless, within 120 days of the entry of the amended judgment, the State of Illinois elects to commence proceedings to afford petitioner a new trial.\u201d The State did not appeal the decision, but in compliance with the federal order, filed a new indictment against the defendant.\nFollowing his arraignment, the defendant moved to dismiss the indictment as barred by the protection against double jeopardy and by the due process clauses of the United States and Illinois Constitutions. The State countered that under federal and Illinois law, there is no bar to a retrial when the reversal of a defendant\u2019s conviction is not based on the insufficiency of the evidence. The State emphasized that there was no evidence the prosecution had intended to \u201cgoad\u201d the defendant into seeking a mistrial, which was never actually declared.\nThe circuit court found \u201c[djouble jeopardy does not apply\u201d because the State acted within its discretion to retry the defendant within 120 days. It also noted the trial had ended not in a mistrial, but in a conviction that was later overturned. Relying on People v. Sales, 357 Ill. App. 3d 863, 830 N.E.2d 846 (2005), the court declined to reach the issue of the prosecution\u2019s intent in the absence of a mistrial, which precludes a finding of a double jeopardy violation. Finally, the court found the defendant\u2019s due process argument unavailing in light of this court\u2019s ruling that no rational jury would have acquitted the defendant. Griffith, 334 Ill. App. 3d at 119.\nThe defendant timely appeals the denial of his pretrial motion to dismiss the indictment pursuant to Supreme Court Rule 604(f). 210 Ill. 2d R. 604(f).\nANALYSIS\nThe defendant acknowledges that in Illinois, no precedent exists for applying the double jeopardy bar to circumstances present in the case at bar. \u201cNo Illinois case has considered or decided \u2014 one way or the other \u2014 the applicability of Double Jeopardy and Due Process protections in the context of intentional and systematic prosecutorial misconduct like that in Mr. Griffith\u2019s case.\u201d To support his contention that retrial should be barred under the Illinois Constitution\u2019s double jeopardy clause, the defendant proposes we look to the more expansive standards of other states under their respective double jeopardy provisions. In the alternative, he contends dismissal is warranted under the due process provisions of the United States and Illinois Constitutions.\nThe State counters that the defendant\u2019s claims are not novel under Illinois case law, which properly limits the remedy for prosecutorial misconduct to a retrial unless the prosecution intends and causes a mistrial. The State also contends the defendant has no right to advance his due process argument where the sole basis of his pretrial appeal is Supreme Court Rule 604(f) (210 Ill. 2d R. 604(f) (\u201cAppeal by Defendant on Grounds of Former Jeopardy\u201d)), which limits interlocutory appeals to denials of claims of double jeopardy.\nStandard of Review\nIllinois Supreme Court Rule 341(h)(3) requires an appellant include \u201ca concise statement of the applicable standard of review for each issue [raised].\u201d 210 Ill. 2d R. 341(h)(3). If the appellant fails to set forth the applicable \u201dstandard of review, the appellee must do so. 210 Ill. 2d R. 341(i). In violation of Rule 341, neither party includes the applicable standard of review on each issue raised. We determine the standard of review without the input of the parties.\n\u201cGenerally, abuse of discretion is the appropriate standard for reviewing a trial court\u2019s ultimate ruling on a motion to dismiss charges on double-jeopardy grounds.\u201d People v. Brener, 357 Ill. App. 3d 868, 870, 830 N.E.2d 692 (2005). This is true where the court faces the factual question whether \u201cthe prosecutor goaded defendant into moving for a mistrial.\u201d People v. Campos, 349 Ill. App. 3d 172, 174, 812 N.E.2d 16 (2004). We review the trial court\u2019s decision against the manifest weight of the evidence where \u201cthe issue *** is the intent of the prosecutor himself, which is a factual question that the trial court is in the best position to determine.\u201d Campos, 349 Ill. App. 3d at 175.\nHere, the defendant does not argue that the prosecutor intended to induce the defendant to move for a mistrial, though her conduct triggered numerous unsuccessful requests for a mistrial. Rather, the parties dispute the legal effect under the Illinois Constitution\u2019s double jeopardy provision of the \u201cintentional, systematic, deceptive, and deplorable prosecutorial misconduct,\u201d as stated by the defendant, during his jury trial, a characterization consistent with that of the federal and state courts in the published opinions of this case.\nIn reviewing the denial of a motion to dismiss on double jeopardy grounds where \u201cneither the facts nor the credibility of witnesses is at issue, we address a purely legal question, and our standard of review is de novo.\u201d In re Gilberto G.-P, 375 Ill. App. 3d 728, 730, 873 N.E.2d 534 (2007), citing Brener, 357 Ill. App. 3d at 870 (applying de novo review where the only issue is whether the defendant\u2019s actions constituted a single act precluding more than one prosecution for double jeopardy purposes). Accordingly, we review de novo the circuit court\u2019s dismissal of the defendant\u2019s double jeopardy claim.\nDouble Jeopardy Protection\nThe double jeopardy clause of the United States Constitution provides: \u201cNo person shall *** be twice put in jeopardy of life or limb ***.\u201d U.S. Const., amend. V The Illinois Constitution of 1970 contains a nearly identical provision: \u201cNo person shall *** be twice put in jeopardy for the same offense.\u201d Ill. Const. 1970, art. I, \u00a710. Section 3 \u2014 4(a)(3) of the Criminal Code of 1961 codifies the constitutional double jeopardy rules. 720 ILCS 5/3 \u2014 4 (West 2004).\nThough the defendant asserts his claim under both the United States and Illinois Constitutions, he urges this court to broaden the protection under the state double jeopardy clause as have the highest courts of at least five states. This, we take, as an implicit acknowledgment that the federal standard remains as stated in Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), which our supreme court has followed in its rulings. \u201cThe Supreme Court in Kennedy, specifically rejecting a more generalized standard of \u2018bad faith conduct\u2019 or \u2018harassment\u2019 in judging whether a mistrial was provoked, held that the error must disclose the prosecutor\u2019s intent to provoke a motion for a mistrial. We followed this standard of intent in [People v. Davis, 112 Ill. 2d 78, 86, 491 N.E.2d 1163 (1986)].\u201d (Emphasis in original.) People v. Ramirez, 114 Ill. 2d 125, 130, 500 N.E.2d 14 (1986).\nTo challenge the circuit court\u2019s ruling below, the defendant first argues that just because no mistrial was declared, his double jeopardy claim should not be foreclosed. See Sales, 357 Ill. App. 3d at 868 (no cognizable double jeopardy claim based on the granting of a new trial because it is not the functional equivalent of a mistrial). The logic of this argument has been acknowledged by our supreme court:\n\u201cThe argument may be made that the reversal of a trial court\u2019s erroneous denial of a motion for a mistrial, which the State has intentionally provoked, deserves the same preclusive effect as if the mistrial had been declared in the first instance.\u201d Davis, 112 Ill. 2d at 86, citing Kennedy, 456 U.S. at 687 n.22, 72 L. Ed. 2d at 432 n.22, 102 S. Ct. at 2095-96 n.22 (Stevens, J., concurring, joined by Brennan, Marshall, and Blackmun, JJ.) (it is \u201c \u2018irrational\u2019 \u201d to permit retrial where the prosecution intended to provoke a mistrial that the trial court erroneously failed to declare), quoting Commonwealth v. Potter, 478 Pa. 251, 282, 386 A.2d 918, 933 (1978).\nSee also United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992) (\u201c[t]here is no justification for [the] distinction\u201d between a defendant who moves successfully for a mistrial and one whose conviction is reversed on appeal); State v. Jorgenson, 198 Ariz. 390, 392, 10 P.3d 1177, 1179 (2000) (\u201cSurely a defendant whose mistrial motion was erroneously denied, as in the present case, should have the same constitutional protection as one whose motion was correctly granted\nThe argument that a reviewing court\u2019s decision, that a mistrial was erroneously denied, should have the same preclusive effect was not resolved in Davis because the Davis defendant never moved for a mistrial. Davis, 112 Ill. 2d at 86. The court also noted \u201cthat the record contains nothing that would support the inference that the prosecutor committed the errors in question with the intent to provoke a motion for a mistrial.\u201d Davis, 112 Ill. 2d at 86.\nAs a foundation for his double jeopardy claim, the defendant before us does not reassert his argument from his direct appeal that the prosecutorial misconduct \u201cwould have justified the trial judge\u2019s declaring a mistrial\u201d (Ramirez, 114 Ill. 2d at 129), given that he moved repeatedly for a mistrial. In Ramirez, the defendant then argued that had the trial judge declared a mistrial based on the asserted errors, the nature of the errors \u201c[was] so egregious that it can be inferred that the prosecutor intended to provoke a mistrial.\u201d Ramirez, 114 Ill. 2d at 130. To support his contention that the asserted errors were \u201cegregious,\u201d the Ramirez defendant pointed to the supreme court\u2019s observation \u201cthat the prosecutor had \u2018purposely\u2019 \u201d committed one of the asserted errors. Ramirez, 114 Ill. 2d at 131. The supreme court in Ramirez did not reject this argument as contrary to the federal double jeopardy standard requiring the declaration of a mistrial, which the court in Davis had declared as the Illinois standard under the limited lockstep doctrine. Rather, the Ramirez court determined that the error found to be reversible was not sufficiently egregious to give rise to an inference that the prosecutor intended to provoke a mistrial:\n\u201c[T]he reference to the defendant\u2019s silence ***, which we held to be error, did not even prompt a defense objection, much less a motion for mistrial. \u2018In view of the failure of both the defense counsel and the trial judge to recognize immediately the need for a mistrial, it is difficult to credit the premise that the prosecutor could not have committed such conduct without knowing and intending that mistrial would result.\u2019 \u201d Ramirez, 114 Ill. 2d at 131, quoting United States v. Curtis, 683 F.2d 769, 777 (3d Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 512, 103 S. Ct. 379 (1982).\nRather than follow the line of argument put forth by the Ramirez defendant (as the argument is foreclosed by Tenner based on our rejection of his mistrial argument on direct review), the defendant before us argues that the reasoning underlying the numerous out-of-state decisions broadening the protection under the double jeopardy clause should apply to his claim based on the egregious prosecutorial misconduct engaged in by the lead prosecutor. He contends the intentional and systematic misconduct undermined the very foundation of a fair trial, which deprived the defendant of his right \u201cto have the charges against him decided by the first trier of fact,\u201d a principal aim behind the double jeopardy protection. Ramirez, 114 Ill. 2d at 129; Kennedy, 456 U.S. at 673, 72 L. Ed. 2d at 423, 102 S. Ct. at 2088 (\u201cone of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him\u201d). According to this argument, it should not matter that the prosecutor that engages in egregious misconduct had no intent to goad the defendant into seeking a mistrial. \u201cOne of the most persuasive criticisms of the Kennedy rule is that the subjective intentions of the prosecutor are inherently unknowable.\u201d State v. Breit, 1996 \u2014 NMSC\u2014067, \u00b623, 122 N.M. 655, 930 P.2d 792, citing Kennedy, 456 U.S. at 688, 72 L. Ed. 2d at 432-33, 102 S. Ct. at 2096 (Stevens, J., concurring) (\u201cIt is almost inconceivable that a defendant could prove that the prosecutor\u2019s deliberate misconduct was motivated by an intent to provoke a mistrial instead of an intent simply to prejudice the defendant\u201d); see Commonwealth v. Smith, 532 Pa. 177, 180-81, 615 A.2d 321, 322 (1992), quoting Commonwealth v. Simons, 514 Pa. 10, 23, 522 A.2d 537, 544 (1987) (Flaherty, J. concurring) (\u201c \u2018Quite the opposite [intent is involved], the intent would be that the defendant should never know how his wrongful conviction came about\u2019 \u201d).\nNotably, the parties agree that the prosecutor\u2019s intent behind the numerous instances of misconduct was not to induce the defendant to seek a mistrial. While we note the State\u2019s assertion in a footnote that it \u201cvigorously disagreefd]\u201d with the federal district court\u2019s decision and the decision of the Illinois Attorney General\u2019s office not to appeal the ruling, the State is no longer free to assert its disagreement over the severity of its prosecutor\u2019s misconduct. People v. Tenner, 206 Ill. 2d 381, 396-97, 794 N.E.2d 238 (2002) (collateral estoppel bars relitigation of an issue decided in a prior case, including the defendant\u2019s federal habeas corpus proceedings).\nIn Smith, the Pennsylvania Supreme Court confronted the issue of \u201cwhether the double jeopardy clause bars retrial following intentional prosecutorial misconduct designed to secure a conviction through the concealment of exculpatory evidence.\u201d Smith, 532 Pa. 177 at 179, 615 A.2d at 323. The Pennsylvania Supreme Court determined that the circumstances in Smith warranted a departure from the federal standard that double jeopardy attaches only when a mistrial has been intentionally caused by prosecutorial misconduct. \u201cWe now hold that the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.\u201d Smith, 532 Pa. at 186, 615 A.2d at 325.\nWe note that District Judge Bucklo ruled that the misconduct engaged in by prosecutor Laura Morask pushed the trial of the defendant in this case to the same point as in Smith:\n\u201cThe prosecution\u2019s dogged focus on the improper theme of Mr. Griffith\u2019s \u2018propensity to kill with a knife,\u2019 [citation], shaped the course of the proceedings and permeated the entire atmosphere of the trial. Such a climate is inherently and fundamentally unfair. \u2018It is axiomatic in our system of justice that an individual is entitled to a fair trial \u2014 not a perfect one. Nevertheless, the distance between the concepts of fair and perfect cannot be so great as to render the former meaningless.\u2019 \u201d Griffith, 587 F. Supp. 2d at 914, quoting United States v. Mannie, 509 F.3d 851, 857 (7th Cir. 2007).\nThe defendant acknowledges that even if his double jeopardy claim had been before the federal district court and Judge Bucklo had been asked to bar the retrial of the defendant based on her finding of a constitutionally unfair trial, retrial could not be barred because the instant case does not fall under the federal standard established by Kennedy as it cannot be contested that the prosecutor\u2019s intent here was not to goad the defendant into a seeking a mistrial. Kennedy, 456 U.S. at 676, 72 L. Ed. 2d at 425, 102 S. Ct. at 2089 (\u201cOnly where the governmental conduct in question is intended to \u2018goad\u2019 the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion\u201d).\nThe defendant correctly notes that states are not bound by the holding in Kennedy, quoting Justice Brennan\u2019s concurring opinion: \u201c[N]othing in the holding of the Court today prevents the state courts *** from concluding that *** retrial would violate the provision of the [state] constitution that prohibits double jeopardy ***.\u201d Kennedy, 456 U.S. at 680, 72 L. Ed. 2d at 428, 102 S. Ct. at 2091 (Brennan, J., concurring, joined by Marshall, J.). Taking their cue from Justice Brennan, other state courts, including Oregon on remand from Kennedy, have adopted broader rules governing the consequences of prosecutorial misconduct under the state provision providing double jeopardy protection. See State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983); Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984); Smith, 532 Pa. 177, 615 A.2d 321; State v. Breit, 1996 \u2014 NMSC\u2014067, 122 N.M. 655, 930 P.2d 792; State v. Rogan, 91 Haw. 405, 984 P.2d 1231 (1999). The defendant urges Illinois to join these states.\nUnlike the courts that issued the decisions cited by the defendant, we are not the highest court of this state. See People v. Artis, 232 Ill. 2d 156, 164, 902 N.E.2d 677 (2009) (\u201cThe appellate court lacks authority to overrule decisions of this court, which are binding on all lower courts\u201d). Only our supreme court is free to veer away from the federal standard. Compare People v. Pendleton, 75 Ill. App. 3d 580, 593, 394 N.E.2d 496 (1979) (retrial may be precluded for misconduct \u201cmotivated by bad faith or undertaken to harass or prejudice the accused\u201d), with People v. Marchbanks, 125 Ill. App. 3d 796, 798-99, 466 N.E.2d 668 (1984) (declining to apply the older Pendleton standard and applying the stricter standard of Kennedy instead).\nAs a lower court, we are limited to following established case law from our supreme court, though we may find little disagreement with the reasoning of the highest court in our sister state in explaining its departure from the Kennedy standard:\n\u201cWe have stated that our State Constitution\u2019s double-jeopardy provision \u2018is subject to the same construction and interpretation as its counterpart in the Fifth Amendment to the United States Constitution.\u2019 [Citation.] That does not mean, however, that we must embrace United States Supreme Court precedent when it changes a standard formerly adopted by this Court. [Citation.] In [a case departing from United States Supreme Court precedent,] we stated that we will \u2018undertake independent analysis of our state constitutional guarantees when federal law begins to encroach on the sanctity of those guarantees.\u2019 [Citation.] ***\n*** [W]hen this Court derives an interpretation of New Mexico law from a federal opinion, our decision remains the law of New Mexico even if federal doctrine should later change. [Citation.]\u201d Breit, 1996 \u2014 NMSC\u2014067, \u00b6\u00b625, 27, 122 N.M. 655, 930 P.2d 792.\nThough the State argues that the absence of a mistrial precludes a finding of a double jeopardy violation (citing Sales), as we noted, our supreme court has observed that a case may arise that warrants a departure from federal law under the lockstep doctrine. See People v. Caballes, 221 Ill. 2d 282, 299, 851 N.E.2d 26 (2006) (\u201cthis court has, on occasion, departed from strict lockstep interpretation when circumstances warrant\u201d). For the same reason that the erroneous denial of a defendant\u2019s motion for a mistrial should not necessarily preclude a review of the intent behind the prosecutorial misconduct to trigger double jeopardy protection (Davis, 112 Ill. 2d at 86), the defendant argues that the inability of a defendant to objectively demonstrate an intent to provoke a mistrial behind egregious prosecutorial misconduct should not foreclose the protection afforded by the double jeopardy clause of the Illinois Constitution when egregious prosecutorial misconduct deprives a defendant from obtaining a fair verdict from \u201cthe first trier of fact.\u201d Ramirez, 114 Ill. 2d at 129.\nThe defendant contends the circumstances present in his case warrant a departure from the federal standard because the \u201cintentional and systematic misconduct of the prosecutor\u201d (Griffith, 334 Ill. App. 3d at 119), which \u201ccalled into question the State\u2019s commitment to fair and just enforcement of the law\u201d (Griffith, 334 Ill. App. 3d at 119), was so egregious that the State should be barred from a second opportunity to convict the defendant. Just as the circumstances present in each of the decisions issued by the supreme courts of the five states warranted a departure from the federal standard on double jeopardy protection, which we cited above, he argues the circumstances in his case warrant a similar departure by the courts of Illinois.\nThe State counters that \u201cnone of those broader interpretations defendant cites, save two, would provide defendant relief based on the facts of his case.\u201d The reasoning behind the majority of the \u201cbroader interpretation\u201d cases is grounded in prosecutorial intent to engage in misconduct to avoid an acquittal likely to occur absent the prosecutorial misconduct. See Wallach, 979 F.2d at 916 (\u201cIf any extension of Kennedy beyond the mistrial context is warranted, it would be a bar to retrial only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct\u201d).\nThe defendant replies that the broader double jeopardy standard adopted by New Mexico, Arizona, and Oregon would, if applied, provide relief under the circumstances in his case. At oral argument he urged that Illinois follow the three-prong standard adopted by New Mexico: the double jeopardy bar applies \u201cwhen [1] improper official conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or motion for a new trial, and [2] if the official knows that the conduct is improper and prejudicial, and [3] if the official intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.\u201d Breit, 1996 \u2014 NMSC\u2014067, \u00b632, 122 N.M. 655, 930 P.2d 792.\nThe State argued at oral argument that the expanded standard based on the \u201cdenial of a fair trial\u201d premised on misconduct being so prejudicial as to cause a mistrial or new trial improperly \u201cconflates\u201d interests protected by the due process clause standard and the protection afforded by the double jeopardy clause.\nTo explain the interests protected by the double jeopardy clause, \u201c[t]he words of Justice Black are often quoted.\u201d Breit, 1996 \u2014 NMSC\u2014 067, \u00b69, 122 N.M. 655, 930 P.2d 792.\n\u201c \u2018The 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.\u2019 \u201d Breit, 1996 \u2014 NMSC\u2014067, \u00b69, 122 N.M. 655, 930 P.2d 792, quoting Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223 (1957).\nThe difficulty this case presents is that while the prosecutorial misconduct was \u201cintentional and systematic,\u201d as we characterized it on our review on direct appeal, we also concluded that \u201cno rational jury could have found the defendant not guilty of felony murder.\u201d Griffith, 334 Ill. App. 3d at 119. In considering the defendant\u2019s claim under the double jeopardy clause, we cannot ignore that a new trial protects the defendant\u2019s constitutional right to a fair trial at stake in this case. See People v. Bull, 185 Ill. 2d 179, 214, 705 N.E.2d 824 (1998) (\u201cA *** defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial ***\u201d). We cannot say that under the unique circumstances in this case, any embarrassment, expense, and ordeal imposed on the defendant in a retrial is due to the vast resources and power of the State rather than the overwhelming evidence of the defendant\u2019s guilt. Nor can we say that the possibility exists that the defendant may be innocent of felony murder, without meaning to suggest that he cannot be found \u201cnot guilty\u201d on retrial. See Green, 355 U.S. at 187-88, 2 L. Ed. 2d at 204, 78 S. Ct. at 223. In other words, we fail to see the interests protected by the double jeopardy clause at stake in this case.\nAt best, the rights of the defendant to be protected are his due process rights to a fair trial, which a verdict, flowing from a fair trial premised on the lawfully admissible evidence free from any influence of prosecutorial misconduct, will vindicate. See People v. Blue, 189 Ill. 2d 99, 119-20, 724 N.E.2d 920 (2000) (retrial ordered against claim that \u201cconduct of State\u2019s prosecutors *** was so improper and abusive that defendant was denied a fair trial\u201d raising doubt of the constitutionality of the defendant\u2019s trial).\nWe are compelled to agree with the State. Regardless of the persuasiveness of the authorities from other states for the rejection of the federal standard in favor of an expanded standard for double jeopardy protection, no cited case leads us to conclude that the interests behind the double jeopardy clause bar a retrial under the circumstances in the defendant\u2019s case, even if this were a first-impression question for a second-tier court to decide. See Wallach, 979 F.2d at 916 (defendant\u2019s case does not fall under new double jeopardy standard urged by the defendant).\nThe defendant\u2019s observation that \u201c[a]n additional five other states have left open the possibility of a broader standard until presented with a case *** involving appropriate facts that could potentially trigger the broader protections\u201d adds little to his argument that his case, in light of the \u201cevidence at trial overwhelmingly in favor of conviction\u201d (Griffith, No. 1 \u2014 03\u20140713, slip op. at 7), presents a case for such consideration in Illinois. See United States v. Doyle, 121 F.3d 1078, 1086 (7th Cir. 1997) (\u201c \u2018[I]t is the right to appeal, not the double jeopardy clause, that protects defendants from trial errors.... The double jeopardy clause serves not to punish prosecutorial misconduct; it simply ensures that the defendant, not the government, gets to choose whether to go to verdict\u2019 \u201d), quoting Beringer v. Sheahan, 934 F.2d 110, 113 (7th Cir. 1991). We are unpersuaded that society\u2019s interest in punishing \u201cone whose guilt is clear\u201d (United States v. Tateo, 377 U.S. 463, 466, 12 L. Ed. 2d 448, 451, 84 S. Ct. 1587, 1589 (1964)), based on lawfully admitted evidence at trial, should be forfeited by the egregious misconduct of a rogue prosecutor. Griffith, 334 Ill. App. 3d at 119 (\u201cno rational jury could have found the defendant not guilty of felony murder\u201d).\nUnder the current state of Illinois law, the only relief the defendant can claim, even in the face of a clear showing of egregious prosecutorial misconduct, is that which the federal district court provided: a new trial. See Blue, 189 Ill. 2d at 139 (\u201cregardless of the weight of the evidence, as guardians of constitutional rights and the integrity of the criminal justice system, we must order a new trial when, as here, we conclude the defendant did not receive a fair trial\u201d (where errors created a pervasive pattern of unfair prejudice to defendant\u2019s case)).\nDue Process\nIn the alternative, the defendant contends his case should be dismissed on due process grounds. The basis for this interlocutory appeal, however, is Supreme Court Rule 604(f). 210 Ill. 2d R. 604(f). The defendant concedes in his reply brief \u201cthat Illinois Supreme Court Rule 604(f) limits the ground for an interlocutory appeal to issues of Double Jeopardy.\u201d We cannot accept the defendant\u2019s contention that the interest of judicial economy, which forms the basis for his contention that we should address this claim now, should trump express language in Supreme Court Rule 604(f) that grants interlocutory review to only his double jeopardy claim. See People ex rel. City of Chicago v. Hollins, 368 Ill. App. 3d 934, 941, 859 N.E.2d 253 (2006) (\u201cThe scope of review of an order in a Rule 604(f) appeal is limited to a former jeopardy analysis ***\u201d).\nCONCLUSION\nThe opinions of the various courts that have reviewed the defendant\u2019s 1999 murder trial have amply demonstrated the egregious misconduct engaged in by the lead prosecutor. We are bound, however, by precedent of our supreme court that the federal standard under Illinois case law requires the prosecutor\u2019s intent behind her misconduct be to \u201cgoad\u201d the defendant into seeking a mistrial to trigger double jeopardy protection. As the defendant concedes, no such intent can be objectively established under the facts of this case. Under well-established precedent, the double jeopardy clause under the Illinois Constitution does not preclude the defendant\u2019s retrial. Nor is his due process claim subject to review in this interlocutory appeal.\nWe affirm.\nAffirmed.\nCAHILL and McBRIDE, JJ., concur.\nIn 2003, Illinois Governor George Ryan commuted his sentence to life in prison.", "type": "majority", "author": "PRESIDING JUSTICE GARCIA" } ], "attorneys": [ "Jeffrey D. Colman and Justin A. Houppert, both of Jenner & Block liLP, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Susan R. Schierl Sullivan, and Marti Jacobs, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVAN GRIFFITH, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201409\u20141001\nOpinion filed September 30, 2010.\nJeffrey D. Colman and Justin A. Houppert, both of Jenner & Block liLP, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Susan R. Schierl Sullivan, and Marti Jacobs, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1072-01", "first_page_order": 1088, "last_page_order": 1104 }