Butler v. State, 2014 Del. LEXIS 296

Butler was indicted for robbery and related offenses; jury was empaneled and sworn on Dec. 4, 2012; trial originally expected to last through Dec. 7.
Case was reassigned midday to a Trial Judge on criminal rotation who had limited, irregular availability and who held off-the-record chambers conferences despite a prosecutor’s request for a reporter.
The Trial Judge pressed the parties to plea, announced a fragmented trial schedule, and conducted additional voir dire after the jury was sworn (over parties’ objections), leading to excusals that threatened to leave no alternates.
Defense counsel moved for a mistrial on the record; the mistrial was granted and the jury excused. Butler later moved to dismiss under double jeopardy, asserting the judge “goaded” counsel into the mistrial; both defense and the State asked the Trial Judge to recuse from deciding the motion.
The Trial Judge denied the motion to dismiss and deemed the recusal motion moot without performing the Los recusal analysis; Butler was retried before a different judge and convicted. The Delaware Supreme Court reviewed the double jeopardy claim de novo.

Issue	Butler’s Argument	State’s Argument	Held
Whether Double Jeopardy bars retrial because the Trial Judge’s conduct intended to provoke a mistrial	Trial Judge’s repeated improper actions (off‑the‑record conferences, plea pressure, reopening voir dire, sparse schedule, elimination of alternates) were intended to prevent the trial from proceeding and thus goaded counsel into moving for a mistrial	Defense counsel voluntarily moved for a mistrial; judicial errors do not alone satisfy the extremely exacting intent-to-goad standard, so retrial is permitted	Court reversed: on de novo review the collective, objective facts supported an inference the Trial Judge intended to avoid presiding, so Butler was goaded into moving for a mistrial and double jeopardy barred retrial
Whether Trial Judge’s failure to perform the Los two‑part recusal analysis requires reversal	Trial Judge should have recused so the dismissal motion could be decided by another judge and an evidentiary record developed	State conceded Los error but argued it was harmless because retrial was permissible	Moot after double jeopardy ruling: because the Court granted dismissal on the merits de novo, the Los claim need not be resolved further

Oregon v. Kennedy, 456 U.S. 667 (1982) (establishes narrow "goading" exception: retrial barred if judge or prosecutor intended to provoke defendant’s mistrial motion)
United States v. Dinitz, 424 U.S. 600 (1976) (general rule: a defendant’s granted mistrial ordinarily permits retrial absent intent‑to‑goad misconduct)
Sullins v. State, 930 A.2d 911 (Del. 2007) (Delaware application of the exacting standard for proving judicial/prosecutorial goading)
Los v. Los, 595 A.2d 381 (Del. 1991) (two‑part test Delaware judges must apply when considering recusal for alleged personal bias)