While the Kennedy decision focused on prosecutorial misconduct, the Third Circuit has since determined that the “intentionally provoked standard” applies to judicial misconduct as well. See United States v. Pharis, 298 F.3d 228, 243 (3d Cir. 2002), as amended (Sept. 30, 2002) (citing Dinitz, 424 U.S. at 606-12); United States v. Dinzey, 259 Fed. App'x 509, 510 (3d Cir. 2007). Mere recklessness or negligent governmental conduct will not preclude the prosecution from retrying the case.

The application of the Double Jeopardy bar requires a showing of the prosecutor's, or in this case, the “quasi-judicial” officer's, subjective intent to cause a mistrial in order to retry the case. See United States v. Dinzey, 259 Fed.Appx. 509, 510 (3d Cir.2007) (“We have specifically held that when a defendant requests a mistrial, even in response to prosecutorial or judicial error, double jeopardy does not bar retrial, unless the error that prompted it was the result of bad-faith conduct by a judge or prosecutorial misconduct.”) (citing United States v. Pharis, 298 F.3d 228, 243 (3d Cir.2002)). See also United States v. Coleman, 862 F.2d 455, 458 (3d Cir.1988) (Double Jeopardy Clause will not bar retrial absent intent on the part of the prosecutor to subvert its protections); United States v. Gilmore, 454 F.3d 725, 729–30 (7th Cir.2006) (“key question is whether the prosecutor deliberately introduced the error in order to provoke the defendant into moving for a mistrial ... Intent is a critical element to understand when determining if a prosecutor's actions intentionally triggered the mistrial.”).

The application of the Double Jeopardy bar requires a showing of the prosecutor's, or in this case, the "quasi-judicial" officer's, subjective intent to cause a mistrial in order to retry the case. See United States v. Dinzey, 259 Fed.Appx. 509, 510 (3d Cir. 2007) ("We have specifically held that when a defendant requests a mistrial, even in response to prosecutorial or judicial error, double jeopardy does not bar retrial, unless the error that prompted it was the result of bad-faith conduct by a judge or prosecutorial misconduct.") (citing United States v. Pharis, 298 F.3d 228, 243 (3d Cir. 2002)). See also United States v. Coleman, 862 F.2d 455, 458 (3d Cir. 1988) (Double Jeopardy Clause will not bar retrial absent intent on the part of the prosecutor to subvert its protections); United States v. Gilmore, 454 F.3d 725, 729-30 (7th Cir. 2006) ("key question is whether the prosecutor deliberately introduced the error in order to provoke the defendant into moving for a mistrial . . . Intent is a critical element to understand when determining if a prosecutor's actions intentionally triggered the mistrial.").