I am a defense attorney. I must admit, when I first heard the headline, I was dubious. Double Jeopardy can attach if the prosecutor causes a mistrial recklessly or intentionally. They might do this is they feel the trial is going badly for them and want to start over. In this case, I wondered how Parnham would get there. But, as I thought about it, the Dietz angle occurred to me, and in fact that is what he is saying.

Obviously, the DA was not TRYING to get a mistrial, but if Parnham can show the DA knew this testimony was objectionable, and therefore worthy of a mistrial, the punishment would be the same.

You are right in your suspicion. If the DA knew the testimony was false, it would amount to subourning perjury. This will be tough for Parnham to prove, but clearly worth a try.

I think in most places, even if it were true that the prosecution intentionally used false testimony (that is, suborned perjury), the defendant would only get a new trial, not a dismissal. But even in those places, courts might have the power to dismiss.

But each state has its own rules about these things, and I don't pretend to have a clue what a Texas court might do. Not ever.

Don't know what you mean by standard "bag o' tricks." There are US Supreme Court cases on prosecutors' presenting false testimony going back many decades. The claim that this happened is, of course, more often made than it is upheld. But sometimes it is upheld -- the questions here are, how bad was the conduct, and what is the proper remedy for it.

To second what RedScare said -- there is Double Jeopardy precedent for dismissing the case if the prosecutor made an error with the purpose of aborting a trial that was going badly, and thus forced the defendant to undergo a second trial (violating the "twice tried" prong of the Double Jeopardy prohibition). This doesn't seem exactly to fit here, but if the prosecutor intentionally used false testimony, maybe it does -- or maybe dismissal is the appropriate remedy for misconduct given the degree of misconduct and the facts of the case. (I had initially overlooked the Double Jeopardy reference.)

David, by "bag o' tricks", I meant is this the sort of motion, like a motion for a directed verdict of Not Guilty after the state presents its case, that defense attorneys routinely make, or is it unusual in some respect?

No, Charles, this is not pro forma. Attorney George Parnham really means business here, as well he should. That testimony was abominable, and if the prosecutor knew (or suspected) that Dietz was making stuff up, there ought to be a remedy for his wrongdoing. There is a real question, however, whether the defense already got all it was entitled to by getting a new trial. The answer to that may depend in part on how folks feel about Andrea these days, whether the Judge is elected, and when the election is. You would know more about those things than I.

Kuff, I wouldn't put this motion in the 'usual bag of tricks' category. It is relatively unusual to claim Double Jeopardy after a mistrial, unless some prosecutor conduct warrants it. As David said, this is not exactly the same as intentionally aborting a trial, since the trial never mistrialed. But, it IS an interesting argument, and if successful, would certainly make those EXTREMELY few prosecutors who intentionally introduce false testimony think twice about doing so.

And Charles, some of that stuff like the motion for a directed verdict or whatever isn't really a defense "trick" so much as a prosecution trick. Defense lawyers must make such a motion in every case, because if they don't, they waive a very important claim on appeal, that the evidence was insufficient to convict their client. That is, the draconian forfeiture rules (make the motion or lose it forever) designed to cut down on defense claims on appeal, forces defense lawyers to make lots of boilerplate motions just in case. Sorry if a little off topic, but it's important to understand that appellate courts generally won't listen to claims that weren't first made to the trial court.

Thanks very much for the feedback, guys. That really clarifies things a lot.