Appellate courts should be able to re-weigh evidence when reviewing double-jeopardy decisions in cases stemming from mistrials due to prosecutorial misconduct, defense attorneys argued before the Pennsylvania Supreme Court, in a session that drew a testy exchange between one justice and a deputy attorney general.

The Supreme Court heard argument Wednesday in the consolidated cases, captioned Commonwealth v. Rivera and Commonwealth v. Cooper-Reid, to determine what standard appellate courts should apply when reviewing double-jeopardy claims that arise after a case is tossed for prosecutorial misconduct.

According to court records, the defendants invoked their double-jeopardy protections after a Common Pleas Court judge granted a mistrial following repeated instances where the prosecutor failed to disclose some of the evidence it planned to use at trial, and sought to introduce evidence of text messages from a cellphone prosecutors had destroyed.

The cases hinged on a narrower set of facts, as the judge who ruled on the double-jeopardy motions was not the same judge who handled the trial. But, still Justice Kevin Dougherty took the opportunity to chastise prosecutors for minimizing the prosecutorial misconduct.

"You're supposed to be the good guy. You don't just put their head in the noose and then say. 'Oh by the way [we have information we didn't disclose],'" Dougherty said while Deputy Attorney General Christopher Schmidt was at the lectern. "I'm a former DA. I know the power of discovery."

Defense attorneys for Nelson Rivera Jr. and Napheace Jamal Cooper-Reid argued that, given the rights at stake, appellate courts need to be able to review double-jeopardy motions de novo so they can see the full scope of the alleged improprieties.

"It's too important of an issue … for the appellate courts to essentially not be able to look at the record top to bottom," defense attorney Patrick Johnson, who represented Rivera, told the justice.

Currently, caselaw in Pennsylvania says defendants must be given double-jeopardy protections when a prosecutor's misconduct resulting in a mistrial was intentional, and Clinton County Public Defender Paul Ryan, who represented Cooper-Reid, said that could be problematic.

"If all we're talking about is intent, then all the trial court needs to do is make that finding, then appellate courts are bound by that fact, and then game over," Ryan said.

Several justices, however, questioned whether the trial court, having seen the parties and attorneys first hand would be in the best position to determine whether the prosecutor's misconduct was intentional.

"There's something about seeing lawyers and the parties. It's necessary," Justice Max Baer said.

According to court records, the defendants faced numerous counts of possession with intent to deliver a controlled substance, conspiracy, and criminal use of a communication facility, along with other charges that stemmed from nearly 20 alleged sales of controlled substances between July 2014 and April 2015.

During trial, however, prosecutors allegedly failed to disclose plans to qualify an expert, failed to disclose they planned to use a PowerPoint presentation, and then subsequently altered one of the PowerPoint slides without advising the defendants. Court records said prosecutors also destroyed a cellphone containing text messages they planned to use, and that prosecutors also failed to disclose one of the defendants' inculpatory statements.

After a mistrial was granted, a second judge handled the double-jeopardy issue. Although a hearing was held, according to defense counsel, the judge also did not review a full transcript of the trial.

The prosecutor who appeared before the justices Wednesday argued that the defendants' failure to object to having a new judge rule on the double-jeopardy motion and their failure to object to the absence of the transcript indicated that the defendants' arguments needed to be waived.

However, it was this argument, plus an attempt to explain away each mistake by the prosecutor, that drew Dougherty's ire.

Schmidt, however, contended that the court's ruling shouldn't focus solely on these cases, but should provide guidance for all future instances where this might arise. Schmidt also said all state and federal courts continue to give deference to trial courts when reviewing these issues.

"It's not always that the benefit of the standard is going to be for the prosecution," he said.

At several points during the arguments the justices also suggested they may carve out a more limited set of circumstances—like in Rivera and Cooper-Reid where the judge did not oversee the trial—that would allow appellate courts to do a deeper review of the case.

"It might be that there's a rare case where the appellate court is in the same position as a second judge," Chief Justice Thomas Saylor said, concluding the argument.